Taj Uddin vs The State Of Assam
2025 Latest Caselaw 7834 Gua

Gauhati High Court

Taj Uddin vs The State Of Assam on 16 October, 2025

                                                                             Page No.# 1/11

GAHC010208062025




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

                               Case No. : Bail Appln./3039/2025

            TAJ UDDIN
            S/O MOBOSSIR ALI
            R/O VILL- PASCHIM CHANDRAPUR
            P.S. DHARMANAGAR
            DIST. DHARMANAGAR, TRIPURA.



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M A CHOUDHURY, MR A AHMED,MISS. P M AHMED,U U
KHAN,MR. A AHMED

Advocate for the Respondent : PP, ASSAM,




                                           BEFORE
                        HON'BLE MR. JUSTICE ROBIN PHUKAN

                                       ORDER

16.10.2025

Heard Mr. A. Ahmed, learned counsel for the accused and also heard Mr. P. Barthakur, Page No.# 2/11

learned Additional Public Prosecutor, Assam, appearing for the State respondent.

2. This bail application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by the accused, namely, Taj Uddin, who has been languishing in jail hazot since 07.03.2022, in connection with Special (NDPS) Case No.40/2022, pending in the Court of learned Special Judge, Karimganj, arising out of Patherkandi P.S. Case No.69/2022 registered under Section 21(C)/25/29 of the NDPS Act, for grant of bail.

3. It is to be noted here that above noted case has been registered on the basis of one FIR lodged by SI Rajpratap Singha of Patharkandi PS, on 6/3/2022. The essence of allegation in the FIR dated 06.03.2022 is that acting on a tip off and after taking authorization from OC Patherkandi P.S., vide Patharkandi PS G.D.E No 124/22, dated 6/3/2022, the informant Rajpratap Singha had conducted naka checking at NH-8, near Mundomala bypass, and stopped the Alto vehicle bearing registration No. TR-05D-0625 and after conducting search, SI Rajpratap Singha, with his team CN 245 Alam Uddin, CN 580 Bidhan Das, D/LNK 19 Sumesh Sinha and 2 CRPF personnel of 10 BN B coy, had recovered 27 numbers of soap boxes, containing 297 gms of suspected narcotic drugs concealed inside the front side bumper and inside the both mudguard of front side and thereafter, seized the same in presence of seizure witnesses along with the Alto vehicle and key and 2 numbers of mobile handset from the 2 apprehended persons, namely, Siap Uddin and Taj Uddin.

4. Thereafter, investigation was carried out and having found a case well established U/S 21(c)/25/29 NDPS Act against accused, namely, (1). Saip Uddin and (2) Taj Uddin, and absconding co-accused persons, namely, (1) Fajlu Mia, (2) Suleman Uddin and (3) Sajid Uddin.

5. Mr. Ahmed, learned counsel for the accused referring to Annexure-11 and 12, at page Nos.50 and 52 of the application, i.e. the notice under Section 50 Cr.P.C. and Memo of Arrest, issued to the accused, by the arresting authority submits that nowhere in the aforesaid two documents the ground of arrest was communicated to the accused. Mr. Ahmed, referring to two decision of Hon'ble Supreme Court in the case of Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 SCC OnLine SC 269 at paragraph Page No.# 3/11

Nos.14 and 15 and also the decision of Hon'ble Supreme Court in the case of Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254, especially in paragraph Nos.29, 30 and 31, submits that for non-compliance of the aforesaid requirement, the right of the accused guaranteed under Article 22(1) of the Constitution of India is violated and therefore, it is contended to allow the petition.

6. Per contra, Mr. P. Borthakur, learned Additional Public Prosecutor has fairly submits that going through the Annexure -11 and 12, at page No.50 and 52, it cannot be said that the I.O. has communicated the ground of arrest to the accused persons. However, Mr. Borthakur, referring to a decision of Hon'ble Supreme Court in the case of Harikishan vs. The State of Maharashtra, in Criminal Appeal No. 189/1961, submits that the law in respect of communication of the ground of arrest is well settled long back in the year 1962 and in view of the decision of Hon'ble Supreme Court in the case of Ram Kishor Arora v. Directorate of Enforcement, reported in (2024) 7 SCC 599, the effect to the order of Hon'ble Supreme Court in the cases of Prabir Purkayastha (Supra) and Vihaan Kumar (Supra), cannot be extended retrospectively. Mr. Borthakur also submits that the accused here was arrested long back before the decision of Prabir Purkayastha (supra) and in the case of Vihaan Kumar(supra), and as such, Mr. Borthakur has opposed the petition.

7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the scanned copy of the record received from the learned trial Court and also the case laws referred by learned counsel for both the parties.

8. The basic facts of this case are not disputed. Besides, a careful perusal of the Annexure -11, at page No. 50 of the petition, it appears that notice was issued to the accused at the time of his arrest on 07.03.2022, and nowhere in the aforesaid notice, the ground of his arrest has been mentioned. Further from a perusal of the Annexure - 12, at page No. 52 of the present petition, it appears that the ground of arrest has never been communicated to the accused.

9. It is to be noted here that the notice given to the accused under Section 50 of Page No.# 4/11

the Cr.P.C., on the date of his arrest i.e. 07.03.2022, it is stated as under:-

"You are hereby informed in written that you are arrested in connection with above noted case as sufficient evidence have been found against you involving to the case. The offence charged on you are non bailable one. So you are forwarded to court custody on 07/03/22 and the ground of arrest is communicated as per the provision of law. You may proceed to honourable court for your bail."

10. Thus, it becomes apparent from the arrest memo, and also from the notice under Section 50 Cr.P.C. that the ground of arrest has not been communicated, though the case number i.e. Patharkandi P.S. Case No. 69/2022, under Section 21(c)/25/29 of the NDPS Act is mentioned in the same.

11. Further, it appears from the status report and scanned copy of the record of the learned trial Court that the charge under Section 21(c) of the NDPS Act was framed on 28.09.2022, and since then, trial is going on and so far one witness has been examined out of 9 witnesses cited in the charge-sheet.

12. It is to be noted here that in the case of Vihaan Kumar (supra), the Hon'ble Supreme Court has held that when an accused claims a violation of Article 22(1) of the Constitution of India, the burden shifts to the Investigating officer to prove compliance. In the case in hand, from a perusal of the record this Court is unable to find any document to show communication of the ground of arrest to the accused in writing, as mandated under Article 22(1) of the Constitution of India and also in the decisions referred herein above.

13. It is also to be noted here that the effect of non-communication of ground of arrest is well settled by Hon'ble Supreme Court in the cases of Prabir Purkayastha (supra), Pankaj Bansal v. Union of India & Ors., reported in (2024) 7 SCC 576 and Vihaan Kumar (supra). In the case of Vihaan Kumar (supra), Hon'ble Supreme Court has in no uncertain terms, stated that if an arrested person is not informed of the grounds of arrest in a language they understand, then the arrest becomes illegal. It is also held that failure to inform the grounds of arrest to the accused's relatives or nominated persons, under Section 50 of the Cr.P.C. (Now Sec 47 of BNS, 2023) also renders the arrest illegal.

14. It is to be noted here that while dealing with the issue, of communication of Page No.# 5/11

ground of arrest to the accused, in the case of Vihaan Kumar (supra), Hon'ble Supreme Court has held as under:-

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 requirements 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 charge sheet 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 Page No.# 6/11

statutory restrictions on the grant of bail exist. The statutory 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.

15. In the instant case, having perused the record of the learned trial Court except the Annexure-11 and 12 i.e. the Notice under Section 50 Cr.P.C. and the Memo of Arrest, there is no other document to show that the grounds of arrest were communicated to the accused while causing arrest of the accused. A n d as such, the arrest of the accused appears to be illegal and contrary to the provision of law and also of the decisions of Hon'ble Supreme Court in the case of Vihaan Kumar (supra) and Prabir Purkayastha (supra).

16. It is a fact the accused herein this case is arrested under Section 21(c) of the NDPS and charge was also framed under the said Section. Indisputably, the quantity of contraband substances so recovered from his possession was commercial quantity. And as such, there is a requirement of satisfying the twin conditions of Section 37 of the NDPS Act. But, in the case of Vihaan Kumar (supra), it has been held by Hon'ble Supreme Court that when a violation of Article 22(1) is established, it is the duty of the Court to forthwith order the release of the accused and that will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory 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.

17. This Court has also considered the submission of Mr. Borthakur, the learned Addl. P.P., and also gone through the decision relied upon by him in opposing the petition. A Constitutional Bench of Hon'ble Supreme Court, in the case of Harikishan (Supra), in paragraph No. 11, held as under: -

"11. It has not been found by the High Court that the appellant knew enough English to understand the grounds of his detention. The High Court has only stated that he has studied up to 7th Hindu Standard, which is equivalent to 3rd English Standard". The High Court negatived the contention raised on behalf of the appellant Page No.# 7/11

not on the ground that the appellant knew enough English, to understand the case against him, but on the ground, as already indicated, that the service upon him of the Order and grounds of detention in English was enough communication to him to enable him to make his representation. We must, therefore, proceed on the assumption that the appellant did not know enough English to understand the grounds, contained in many paragraphs, as Indicated above, in order to be able effectively to make his representation against the Order of Detention. The learned Attorney-General has tried to answer this contention in several ways. He has first contended that when the Constitution speaks of communicating the grounds of detention to the detenue, it means communication in the official language, which continues to be English; secondly the communication need not be in writing and the translation and explanation in Hindi offered by the Inspector of Police, while serving the Order of Detention and the grounds, would be enough compliance with the requirements, of the law and the Constitution; and thirdly, that it was not necessary in the circumstances of the case to supply the grounds in Hindi, in our opinion, this was not sufficient compliance in this case with the requirements of the Constitution, as laid down in clause (5) of Art. 22. To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfill the requirements of the law. As has been explained by this Court in the case of The State of Bombay v. Atma Ram Sridhar Vidya, [1951] S.C.R. 157 clause (5) of Art. 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of Page No.# 8/11

all the grounds on which the Order of Detention is based. In this case the grounds are several, and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this contest, must mean bringing home to the detenue effective knowledge of the facts and circumstance on which the Order of Detention is based."

18. It is a fact that the aforementioned proposition was laid down in the case of an accused, who was kept under detention under Section 3(1)(a)(ii) of the Preventive Detention Act, 1950, but the said proposition is equally applicable in case of accused under other penal statute also as Hon'ble Supreme Court has discussed about Article 22(1) of the Constitution of India in the said case. And as such, this Court is of the view that the ratio laid down in the aforesaid case, instead of advancing the argument of Mr. Borthakur, has strengthened the submission of Mr. Ahmed, learned counsel for the accused.

19. Now coming to the submission of Mr. Borthakur, learned Additional Public Prosecutor, I find that in the case of Ram Kishor Arora (supra), Hon'ble Supreme Court in paragraph No. 23, has dealt with the issue as under:

"23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 of PMLA, directed to furnish the grounds of arrest in writing as a matter of course, "henceforth" meaning thereby from the date of the pronouncement of the judgment. The very use of the word "henceforth" implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the Appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary "henceforth" that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence non furnishing of Page No.# 9/11

grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal (supra)."

20. Though, Mr. Borthakur, the learned Additional Public Prosecutor, on the basis of the decision of Hon'ble Supreme Court in the case of Ram Kishor Arora (supra), submits that the decisions in Prabir Purkayastha (supra), Pankaj Bansal (supra) and Vihaan Kumar (supra), cannot be given retrospective effect, yet it is well settled that judicial decisions are presumed to have retrospective application unless mentioned otherwise.

21. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Kanisk Sinha & Anr. vs. The State of West Bengal and Anr. Special Leave Petition (Criminal) No. 8609-8614, wherein it has been held as under: -

"Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively."

22. Though in the case of Pankaj Bansal (supra), the word 'henceforth' was used, meaning thereby from the date of the pronouncement of the judgment, the law laid down therein would be applicable, and on such count Hon'ble Supreme Court has refused to give effect of the same retrospectively in the case of Ram Kishor Arora (supra) and on such count, the submission of Mr. Borthakur has some force, yet there is no such Page No.# 10/11

direction in the case of Vihaan Kumar (supra), regarding prospective effect of the said decision. That being so, in view of the proposition of law, so laid down in the case of Kanisk Sinha & Anr. (supra), judicial decisions are presumed to have retrospective application unless mentioned otherwise. That being so, this Court is unable to record concurrence with the submission of Mr. Borthakur, the learned Additional Public Prosecutor.

23. Mr. Borthakur has also referred to an order dated 24.06.2025, passed by a Co- ordinate Bench of this Court in B.A. No. 1371/2025, submits that in the said case, the Co- ordinate Bench of this Court has not granted bail to the petitioner for being the petitioner was arrested prior to the decisions of Pankaj Bansal (supra). Notably, in the said case it has been held as under:-

"In any event, the arrest of the petitioner had been made on 19.11.2022, that is, prior to the judgment of the Supreme Court in Pankaj Bansal (supra). As the Supreme Court in Pankaj Bansal (supra), has held that "henceforth", the grounds of arrest must be communicated in writing to the accused, the same would be applicable only after the said decision was made. Thus, the effect of not writing down the grounds of arrest in the present case, in the view of this Court, cannot be a ground to release the petitioner on bail. Further, the subsequent decisions of the Supreme Court in Prabir Purkayastha (Supra) and Vihaan Kumar (supra) have followed the judgment of Pankaj Bansal (supra). Thus, the requirement of furnishing the grounds of arrest in writing prior to the decision in Pankaj Bansal (supra) on 03.10.2023, cannot be a ground for granting bail to the petitioner."

24. This Court has considered the aforesaid submission of Mr. Borthakur and also gone through the decision referred by him in B.A. No. 1371/2025. But, in view of the settled proposition of law in this regard, in the case of Kanisk Sinha & Anr.(supra), wherein it has been held that "the judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively.", this Court is unable to record concurrence with the submission of Mr. Borthakur, while there is no indication in the case Page No.# 11/11

of Prabir Purkayastha (Supra) and Vihaan Kumar (supra) about prospective effect of the said judgments.

25. Besides it appears that the accused is also behind the bar since 07.03.2022. The charge was framed on 28.09.2022, and since then, trial is going on and so far only one witness has been examined out of 9 witnesses cited in the charge sheet. If the trial proceeds at the present pace then there is no prospect of immediate conclusion of trial, thereby putting his right to speedy trial in jeopardy.

26. Under the aforesaid facts and circumstances, this Court is inclined to allow this petition. It is provided that on furnishing a bail bond of ` 1,00,000/- with one surety of like amount to the satisfaction of the learned Trial Court, the accused, namely, Taj Uddin, shall be enlarged on bail. The learned Trial Court shall be at liberty to impose further conditions to ensure presence of the accused during trial.

27. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant