Page No.# 1/ vs The State Of Assam
2025 Latest Caselaw 90 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 2 May, 2025

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GAHC010005732024




                                                                  2025:GAU-AS:5391

                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./114/2024

            KIYEKA AYEMI
            S/O VIKHETO AYEMI
            R/OVISHIYA
            P.S. NUILAND
            DIST. DIMAPUR, NAGALAND



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S MUNIR, MR R AKHTAR

Advocate for the Respondent : PP, ASSAM,




                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                           ORDER

02.05.2025

Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent.

2. This is an application under Section 439 of Cr.PC, 1973 for granting regular Page No.# 2/10

bail to the petitioner, i.e. Kiyeka Ayemi, who has been arrested on 01.04.2023 in connection with NDPS Case No. 45/2023 arising out of Khatkhati P.S. Case No. 31/2023 registered under Section 21(c)/29 of NDPS Act, 1985 pending before the learned Court of Special Judge, NDPS, Diphu, Karbi Anglong, Assam. Pertinent that charge-sheet has been submitted vide C.S No. 54/2023 dated 30.06.2023 before the learned Court of Special Judge, NDPS, Diphu, Karbi Anglong, Assam.

3. The facts of the case is that on 01.04.2033, complainant SI (P) Swmdwn Swargiary lodged an FIR at Khatkhati PS that on 01.04.2023, an information received by the OC Khatkhati PS from the reliable source regarding smuggling of huge quantity of suspected to be Narcotic substance by drugs smugglers from Dimapur towards Bokajan via Janak Pukhuri. Accordingly, GDE was made by OC Khatkhati PS vide GDE no.06 dated 01.04.2023 and informed the matter to the SDPO Bokajan and Sri Benni D, Inspector, 20bn C coy, Bokajan. A Police team from Khatkhati PS was detailed by the O/C Khatkhati PS to assist him vide above referred. On reaching at Janak Pukhuri near Railway Line, complainant and staff had set up a special checking and at about 12:05 pm he was detained one suspected person namely Sri Kiyeka Ayemi age about 34 years, S/O- Vikheto Ayemi, R/O- Vishiya, PS- Nuiland, District Dimapur, Nagaland coming on foot from Kaliram basti side towards Janak pukhuri along with one cartoon in his hand. On searching the body and cartoon carried by the said person as per provision of law, complainant had recovered total 47 (forty seven) nos. of soap boxes containing one polythene packet in each box which contains identical brown colour powdery substances suspected to be heroin (all boxes are marked as 1 to 47), weighing total suspected heroin = 576.84 grams and other articles from the possession of the detained person which were kept conceal inside a Page No.# 3/10

cartoon carried by him and accordingly, all the recovered suspected heroin has been seized in presence of independent witnesses as per seizure memo. As well as detained the person. The said FIR was received and registered as Khatkhati P.S. Case No. 31/2023 being registered under section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Thereafter, the petitioner was arrested on 01.04.2023 in connection with the aforesaid case and accordingly, he is in custody since then. Hence, the instant bail application.

4. Mr. Y.S. Mannan, learned counsel for the petitioner submits that the arresting authority while arresting the petitioner has not informed the grounds of arrest to him and as such, the Fundamental and Constitutional Rights guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioner is entitled to be released forthwith.

5. Per contra, Ms. S.H. Borah, learned Additional Public Prosecutor by vehemently opposing the prayer of bail submits that notice issued under Section 50 of Cr.PC indicates that information as regards grounds of arrest has been informed to the petitioner at the time of his arrest.

6. I have considered the submissions advanced by the learned counsels for both the parties and also perused the materials available on record.

7. The primary ground urged in this bail application is as regard non- compliance of the Constitutional and Fundamental Right of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Apt to refer to Article 21 and 22(1) of the Constitution of India, which reads as hereunder:-

"21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure Page No.# 4/10

established by law.

22. Protection against arrest and detention in certain cases.--

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

8. Perusal of the aforesaid provision, it is apparent that an arrestee has a Constitutional and Fundamental Right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest.

9. In the present case, apt to refer to the notice issued to the petitioner under Section 50 of the Cr.P.C., which reads as hereunder: -

"NOTICE OF INFORMATION U/S-50 Cr.PC (Information to apprehended person on grounds of apprehension and right to bail)

To, Sri. Kiyeka Ayemi age about 34 years. S/o Vikheto Ayemi, R/o Vishiya, PS-Nuiland, District: Dimapur, Nagaland

You are hereby informed of your apprehension/arrested in connection with the below referred case/circumstances. The case is non-bailable to Police.

Case No. & Penal Section of Law/GD reference and circumstances and PS:

Khatkhati PS Case No. 31/2023 U/S 21(c) NDPS Act. _____________________________________________________

Signature of Arrested Person : Kiyeka Ayemi Page No.# 5/10

Signature of Arresting Officer : SI Nitul Saikia

Designation : SI of Police

Camp : Khatkhati Police Station

Date : 01.04.2023 at 10:30 PM"

10. Perusal of the aforesaid notice indicates that no facts whatsoever constituting the grounds of arrest is reflected in the said notice except that he has been arrested in connection with the case under reference.

11. Apt also to refer to the memo of arrest, which reads as hereunder: -

"ARREST MEMO

1. Name and Particulars of person arrested:-

Sri Kiyeka Ayemi age about 34 years, S/O- Vikheto Ayemi, R/O- Vishiya, PS- Nuiland, District: Dimapur, Nagaland

2. Circumstances (includes arrest done under Sec.42d of Cr.PC and General Diary reference of Police Station or Out Post/Case No. & Sessions of Law and Police Station:- Khatkhati PS Case No. 31/2023 u/s 21(c) NDPS Act.

3. Place of Arrest : Khatkhati Police Station.

4. Date and Time of Arrest : On 01.04.2023 at 10.30 PM

5. Injuries present at the time of Arrest : No external injury seen on his person.

6. Whether the arrested person forcibly resisted the endeavor to arrest him?

No. Page No.# 6/10

7. If arrested person forcibly resisted the arrest, what are the means used by the police officer to affect the arrest? Does not arise.

8. Whether the accusations against the arrested person bailable or non- bailable? Non bailable

9. If the accusations against the arrested person are bailable, whether the arresting officer intimated the arrested person the he/she is entitled to bail and that he may arrange for sureties on his behalf (Ref. Sec.50(2) Cr.PC.). Does not arise

10. Signature, Name and Address of witness to arrest:

Name and Address of            Signature with Date and
Witness                        Time
Sri Amugha Ayemi age 29 years,
S/O- Late Jeheto Ayemi,        Amugha Ayemi
Vill- Vishiyi                  Vishiyi Vill
PS- East, Dimapur
Dist.- Dimapur, Nagaland
M/No. 8575313107

11. Signature of Arrested Person: Yiyeka Ayemi

12. Signature, Name and Designation of Arresting Officer :

Nitul Saikia, SI of Police"

12. Perusal of the memo of arrest also indicates that no information as regards the grounds of arrest is mentioned. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioner: -

"INSPECTION MEMO

Reference:Khatkhati PS Case No. 31/2023, u/s 21(c) NDPS Act. I undersign do hereby inspect/search over the body of the below noted person arrested in connection with above referred case/circumstances and during inspection/search found the following injuries on the body.

                                                                        Page No.# 7/10

   Name, age and address of the      Description of injuries found
         arrested person

Sri Kiyeka Ayemi age about 34       No external injury seen on
years, S/O-Vikheto Ayemi, R/O       his person
Vishiya, PS-Nuiland,
District: Dimapur, Nagaland

Signature of the Arrested Person:- Kiyeka Ayemi Signature of the Arresting Officer:- Nitul Saikia

Designation : SI of Police Camp : Khatkhati Police Station Date & Time : 01.04.2023 @ 10.30 PM."

13. It appears from the materials placed before this Court that there are no materials available in the case diary to indicate that the grounds of arrest have been informed to the petitioner at the time of his arrest.

14. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will be a violation of the Constitutional and Fundamental Rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established.

15. Reference is made to the decision of the Apex Court in the case of Vihaan Kumar Vs State of Haryana and Anr ., reported in 2025 SCConline SC 269. Paragraph 21 of the aforesaid decision is reproduced hereunder for Page No.# 8/10

ready reference:

"21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirernents of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory Page No.# 9/10

restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

16. Reading of the aforesaid judgment, it is abundantly clear that the information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts of the case is imparted and communicated effectively to him and non compliance of the same will be a violation of the fundamental rights of the accused guaranteed under Artice 22(1) of the Constitution of India.

17. In the present case, there is nothing in the case diary/case record/materials available on record to indicate that grounds of arrest have been communicated to the petitioner. Therefore, it is absolutely clear that the grounds of arrest was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest of the petitioner stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioner. Therefore, further detention of the petitioner in the custody is totally unjustified.

18. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, the petitioner named above, shall be released on bail in connection with the aforementioned case on furnishing of a bail bond of Rs. 50,000/-(Rupees Fifty Thousand) only, with two sureties of like amount, provided that one surety has to be a Government Servant, to the satisfaction of the learned Special Judge, NDPS, Diphu, Karbi Anglong, Assam, subject to the following conditions:

(a) shall not leave the territorial jurisdiction of jurisdictional Page No.# 10/10

learned Special Judge, under the NDPS Act, without prior written permission from him;

(b) shall deposit his Passport/visa, etc if any, in the Court of the learned jurisdictional Special Judge;

(c) shall not hamper with the investigation, or tamper with the evidence of the case;

(d) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and

(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.

19. In terms of the above, the bail application stands disposed of.

JUDGE

Comparing Assistant