Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 8974 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 28 November, 2025

                                                                        Page No.# 1/7

GAHC010217042025




                                                                  2025:GAU-AS:16248

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

                               Case No. : Bail Appln./3291/2025

            AMINUR ISLAM AND ANR
            S/O CHALIBOR RAHMAN
            R/O BAOLIA
            P.S. MANKACHAR
            DIST. SOUTH SALMARA, ASSAM,
            PIN-783131

            2: NUR AMIN
             S/O LT. KHOTOM ALI @ KHATEM ALI
            RESIDENT OF BOALIA
             PS MANKACHAR
             DISTRICT SOUTH SALMARA
            ASSAM
             PIN- 78313

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

Advocate for the Petitioner   : MR. SANU HUSSAIN, MR K THAKUR

Advocate for the Respondent : PP, ASSAM,

                                      BEFORE
                       HON'BLE MRS. JUSTICE MITALI THAKURIA


                                           ORDER

Date : 28.11.2025.

Page No.# 2/7

Heard Mr. K. Thakur, learned counsel for the petitioners. Also heard Mr. K. Baishya, learned Additional Public Prosecutor, Assam for the State respondent.

2. This is an application under Section 483 of BNSS, praying for grant of bail to the accused/petitioners, namely, (1) Aminur Islam and (2) Nur Amin in connection with Special NDPS Case No. 42/2025, arising out of Mankachar P. S. Case No. 70/2025, under Sections 22(C)/29 of NDPS Act, which is pending before the Court of learned Special Judge cum District & Sessions Judge, South Salmara.

3. The scanned copy of the Trial Court Record along with the Case Diary has already been received and I have perused the same.

4. It is submitted by Mr. Thakur, learned counsel for the petitioners, that the accused/petitioners are innocent and they are no way connected with the alleged offence, as alleged in the FIR. The petitioner No.1 is in the custody since last 213 days and the petitioner No.2 is in the custody for 140 days. Further, there is no recovery from the possession of the accused/petitioner No.2 and he got arrested in connection with this case only on the basis of the statement made by the co-accused persons. Mr. Thakur, the learned counsel for the petitioners further submitted that there is violation of Article 22(1) of the Constitution of India, as there is no proper communication of ground of arrest as required under the law and as per the guidelines of the Honble Supreme Court, wherein the observation was made in that regard in the case of Prabir Purkayastha vs. State (NCT of Delhi) , reported in (2024) 8 SCC 254 and Vihaan

Kumar vs. State of Haryana and another , reported in 2025 SCC Online SC 269. Mr.

Thakur further submitted that the accused petitioners were provided with the Page No.# 3/7

notice under Section 47 & 48 of the BNSS, 2023 but from the contents of the said notice, it is seen that there is no specification of the contraband which was alleged to have been recovered from the possession of the accused/petitioners. There is also no specification as to what was the quantity of recovery of contraband from the possession of the accused petitioners. Further, he submitted that from the notice issued under Section 48 of the BNSS, 2023, it also reveals that the notice was issued to the petitioner No.1 though it is stated to be issued to the family members/friends/relative of the accused petitioner under Section 48 of the BNSS, 2023. Thus, there is violation of Article 22(1) of the Constitution of India, which is a good ground for considering the bail application for the present petitioner.

5. In that context, the learned counsel for the petitioners relied on the decision of the Hon'ble Apex Court in the case of Mihir Rajesh Shah vs. State of Maharashtra and another in Criminal Appeal No.2195/2025 and other analogous matter, wherein the Hon'ble Apex Court observed that the mandate contained in Article 22(1) of the Constitution of India is unambiguous and clear in nature, it provides that the arrested person must be informed of the grounds of arrest as soon as they can be. It further provides that the arrested person has the right to defend himself by consulting a legal practitioner of his choice. This constitutional mandate has been effectuated by the legislature in Section 50 of CrPC 1973 (now Section 47 of BNSS, 2023) which provides that an arrested person shall be forthwith communicated with the grounds of his arrest.

6. Mr. Thakur further submitted that both the accused petitioners are the permanent residents of their addressed locality and hence, there is no chance of absconding, rather they will regularly appear before the learned Trial Court Page No.# 4/7

below as and when the date fixed by the learned trial Court.

7. Ms. S.H. Bora, the learned Additional Public Prosecutor raised vehement objection and submitted that only considering the length of detention, the bail prayer cannot be considered at this stage wherein both the accused petitioners are involved in the case of commercial quantity and the contraband has also alleged to have been recovered from their conscious possession. She further submitted that from the notice issued to the present petitioners under Section 47 & 48 of the BNSS, 2023, it is seen that the grounds of arrest is specifically mentioned and it is elaborately stated as to why they have been arrested in connection with this case. Thus it is seen that there are sufficient compliance of Section 47 & 48 of the BNSS, 2023, which is the requirement under Article 22(1) of the Constitution of India, More so, it is seen from the notice under Section 48 of the BNSS, 2023 issued to the family members of the petitioner No.1 that it bears the signature of his family member, though inadvertently the name of the petitioner himself was mentioned in it.

8. Thus, it is seen that there are sufficient compliance of Section 47 & 48 of the BNSS, 2023 and as such, it cannot be considered that there was any violation of the Article 22(1) of the Constitution of India to cause any prejudice to the present petitioners. More so, there is nothing in the record to show that any prejudice has been caused to the present petitioners for non-mentioning the quantity of the contraband which were alleged to have been recovered from their possession. They were also aware of their grounds of arrest and they were given sufficient opportunity to engage counsel to prefer the bail application.

9. To substantiate her plea, Ms. Bora, the learned Additional Public Page No.# 5/7

Prosecutor also relied on a decision of the Hon'ble Supreme Court, passed in the case of State of Karnataka vs. Sri Darshan Etc., reported in 2025 SCC OnLine SC 1702 and emphasized on para 20.1.1, 20.1.2, 20.1.3, 20.1.4 and 20.1.7, which

read as follows:

"20.1.1. The learned counsel for the respondents - accused contended that the arrest was illegal as the grounds of arrest were not furnished immediately in writing, thereby violating Article 22 (1) of the Constitution and Section 50 Cr.P.C (now Section 47 of the Bharatiya Nagarik Suraksha Sanhita). This submission, however, is devoid of merit.

20.1.2. Article 22(1) of the Constitution mandates that "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 37 be defended by, a legal practitioner of his choice". Similarly, Section 50 (1) Cr.P.C. requires that "every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

20.1.3. The constitutional and statutory framework thus mandates that the arrested person must be informed of the grounds of arrest - but neither provision prescribes a specific form or insists upon written communication in every case. Judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown.

20.1.4. In Vihaan Kumar v. State of Haryana22 , it was reiterated that Article 22(1) is satisfied if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh23 , it was observed that when arrest is made pursuant a warrant, reading out the warrant amounts to sufficient compliance. Both these post- Pankaj Bansal decisions clarify that written, individualised grounds are not an inflexible requirement in all circumstances.

.......................

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20.1.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally 24 (2024) 7 SCC 576 39 represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal and Prabir Purkayastha is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle Page No.# 6/7

the accused to bail."

10. Relying on the above referred judgment, it is submitted by Ms. Bora, the learned Additional Public Prosecutor that there is sufficient compliance of Section 47 & 48 of the BNSS, 2023 and from the facts and circumstances of this case also it is seen that the accused/petitioners were well aware about their ground of arrest. Rather, the contraband was also recovered from the conscious possession. Accordingly, it is submitted that considering the gravity of the offence, the bail petition of the present accused petitioners may be rejected at this stage.

11, I have heard the submissions made by the learned counsels for both sides and also perused the scanned copy of the case record and the annexure filed along with the bail petition.

12. From the record, it reveals that the charge is not yet framed against the accused persons and hence, there is also no evidence available before this Court to assess the evidence of the prosecution witnesses in this regard. But from the reord and from the annexure filed along with the bail petition, it reveals that the grounds of arrest has been specifically mentioned in both the notices under Section 47 & 48 of the BNSS, 2023. However, there is no mention of quantity and name of the contraband, which was recovered from the conscious possession of the accused petitioners. But from the perusal of the grounds of arrest, it is seen that there is sufficient compliance of Section 47 & 48 of the BNSS, 2023 and mere non-mentioning of the quantity of the contraband cannot be sole ground to consider the bail application for the present accused petitioners or to hold that the accused petitioners were aware not aware about the grounds of their arrest. Rather, they were given opportunity to engage their Page No.# 7/7

counsel as well as to move bail application.

13. As relied by Ms. Bora, the learned Additional Public Prosecutor, the Hon'ble Apex Court had observed that the compliance of requirement under Section 47 & 48 of the BNSS, 2023 is sufficient unless demonstrable prejudice is shown.

14. In the instant case also it is seen that there is no material to show that any prejudice is caused to the accused petitioners due to non-mention of the quantity of the contraband, which have been recovered from their conscious possession. Rather, it is seen that there is specific mention about the grounds of arrest and from the record, it also reveals that both the petitioners are well aware about the grounds of arrest.

15. Thus it is seen that there is sufficient compliance of Section 47 & 48 of the BNSS, 2023, which are the requirement under Article 22(1) of the Constitution of India and hence, there cannot be any reason to consider the bail application for the present petitioners for violation of the constitutional mandate required under Article 22(1) of the Constitution of India.

16. In view of the forgoing discussions, this Court find no merit in this bail petition and accordingly, the same is rejected and disposed of.

JUDGE

Comparing Assistant