Gauhati High Court
Page No.# 1/14 vs The Union Of India on 17 October, 2025
Page No.# 1/14
GAHC010132822025
2025:GAU-AS:13929
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2088/2025
AMIR KHAN AND ORS
S/O- LATE MOOWA ALI.
R/O- VILL.- SANGAIYMPHAM.
P.O.- WANGJING, P.S.- THOUBAL.
DIST.- THOUBAL, MANIPUR, PIN-795148.
2: MD. HABIBUR RAHMAN
S/O- MD. THOMBA.
R/O- VILL.- SANGAIYMPHAM.
P.O.- WANGJING
P.S.- THOUBAL.
DIST.- THOUBAL
MANIPUR
PIN-795148.
3: MD. FARUQUE KHAN
S/O- MD. RAFIQUL.
R/O- VILL.- SANGAIYMPHAM.
P.O.- WANGJING
P.S.- THOUBAL.
DIST.- THOUBAL
MANIPUR
PIN-795148
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SC, NCB, GUWAHATI.
Advocate for the Petitioners : Mr. NJ Dutta
Advocate for the Respondent : Mr. SC Keyal
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BEFORE
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date of hearing : 16.09.2025
Date of order : 17.10.2025
ORDER (CAV)
Heard Mr. NJ Dutta, learned counsel for the petitioners as well as Mr. SC
Keyal, learned counsel representing the NCB.
2. By filing this application U/S 483 of the BNSS, 2023, the petitioners,
namely, Amir Khan, Md. Habibur Rahman and Md. Faruque have sought for bail
in connection with NDPS Case No. 129/2024 (arising out of NCB Crime No.
17/2023) under Section 8(c) r/w Section 21(c)/29 of NDPS Act, pending in the
Court of learned Special Judge, Kamrup(M), Guwahati, Assam.
3. The factual matrix leading to this bail application is that on 16.10.2023, on
the basis of secret information, the intelligence officer, NCB moved at HB lodge,
VIP road, Six Mile, Guwahati. Two Co-accused Sahid Alom and Md. Faruque
Khan (petitioner No. 3) were found in Room No. 6. Upon investigating, they
revealed about the other two (petitioner Nos. 1 & 2, Co-accused) sitting in one
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Honda City car bearing Regd. No. AS-01-AJ-8180, which was found parked
inside the premises of HB Lodge. Thereafter, search was conducted and 37 soap
cases of different colours, containing suspected heroin were recovered and
seized. Accordingly, a case was registered and subsequently the petitioners
were arrested.
4. It is submitted by the learned counsel for the petitioners that the
petitioners have been langulshing in judicial custody for more than one and half
years since their arrest on 18.10.2023. It is also submitted by the learned
counsel for the petitioners that after completion of investigation, on 06.04.2024,
charge sheet has been laid. It is further submitted that on 29.08.2024, charge
has been framed against the accused/petitioners. However, only one witness is
examined till date.
5. It is further submitted by the learned counsel for the petitioners that the
petitioners have been falsely implicated in this case and they are no way
involved in the instant case. It is also submitted that no grounds of arrest was
communicated to the petitioners in the notice served on them U/S 50 Cr.P.C.
(U/S 47 BNSS) which is mandatory in nature, thereby violating the mandates of
Article 21/22 of the Constitution of India.
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6. It is submitted on behalf of the petitioners that the arresting authorities
have arrested them without complying with the mandatory provisions provided
in Article 22 (1) of the Constitution of India which impose a duty on the
arresting authorities to inform the ground of arrest to the person arrested.
Similarly, Section 50 of the Cr.P.C also imposes a duty on the arresting authority
to provide the details of ground of arrest to the arrested accused person.
Whereas, Section 50 (A) of the Code imposes a duty on the arresting authority
to forthwith give the information of such arrest and place where the arrested
person is being held to any of his friends, relative or such other person as may
be disclosed or nominated by the arrested person for the purpose of giving such
information. And in this regard, the Hon'ble Apex Court as well as this Hon'ble
Court has, in a number of cases, held that the ground of arrest shall be
communicated, in writing, to the arrested person as well as to the relative or
friends so nominated by him. This valuable Fundamental Right of the accused
person is sacrosanct and therefore, cannot be violated at any cost. In the
instant case, the arresting authority did not state the ground of arrest in the
notice served upon the accused/petitioners which is evident from the notices
dated 17/10/2023.
7. It is further submitted that the underlying purpose of the provisions of
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Section 50 of the Cr.P.C. is to allow the arrested accused person to have
sufficient notice in respect of the allegation brought against him so that he can
defend himself against such allegation or to seek bail. Moreover, the purpose of
the Section 50 (A) of the Code is to give sufficient notice about the arrest of the
person so arrested to his relatives or friends and the place where such person is
being held after the arrest and also to give them sufficient notice about the
allegation brought against such arrested person so that they can prepare to
secure bail for such arrested person as the arrested person may not be in a
position to seek bail for himself while he is being held in custody. It is contended
that the arresting authorities have also violated the provision of Section 50 (A)
of the Cr.P.C. by not providing the information in respect of ground of arrest, in
writing, to the relative or the family members of the accused/persons.
8. It is further contended that the arresting authorities have prepared
memorandums of their arrest as per requirement of provision of Section 41 (B)
of the Cr.P.C. However, the memorandums so prepared were not signed by any
of the family members of the arrested accused persons nor were those signed
by any respectable member of the locality where the arrest was made as
mandated under the said Section. Moreover, the requirement for preparation of
memorandum of arrest under Section 41 (B) is completely different from
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requirement of communication to be made under Section 50 of the Cr.P.C.
Therefore, the arresting authority has completely violated the provision of
Section 41 (B) of the Cr.P.C. as well. As such, the arrest of the
accused/petitioners has been carried out without following the procedure
established by law.
9. Per contra, Mr. SC Keyal, learned counsel appearing for the NCB, has
submitted that commercial quantity of heroin was recovered from the conscious
possession of the petitioners. As the commercial quantity of contraband item is
involved in the instant case as such, the embargo under Section 37 of NDPS Act
will come into play. It is also submitted one PW has been examined and cross
examination part was reserved. Hence, he has opposed granting bail to the
petitioner. However, he has further submitted that the grounds of arrest have
been mentioned in the arrest memo issued to the petitioners.
10. It may be noted that a previous application filed on behalf of the
petitioners Nos. 1 & 2 was rejected by this Court vide Order dated 26.05.2025 in
Bail Appln. No. 1448/2025. A bail application of another Co-accused Sahid Alom
was allowed by order dated 15.05.2025 in Bail Appln. No. 1143/2025.
11. I have given my anxious considerations to the rival submissions. The
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petitioners were arrested on 17.10.2023 and the perusal of the notices issued
under Section 50 Cr.PC clearly shows that no grounds of arrest have been
mentioned therein. However, individual arrest memos were also furnished to the
petitioners wherein detailed grounds of arrest had been mentioned and
furthermore, prior to their arrest the petitioners were questioned in detail
pursuant to notice under Section 67 of the NDPS Act, and on perusal of such
statements it is abundantly clear that the petitioners were more than aware as
to the grounds of their arrest. Even though the purpose and scope of an arrest
memo under Section 41(B) Cr.PC is different from a notice under Section 50
Cr.P.C, as far as the requirements of furnishing the grounds of arrest to the
accused persons so as to fulfil the mandate of Article 22(1) of the Constitution
of India is concerned, the memo of arrest wherein the grounds of arrest were
mentioned in the detail would be capable of serving the said purpose i.e.
informing the arrestee of the grounds of arrest.
12. It has been submitted on behalf of the petitioners that as far as the arrest
memo is concerned, it only bears the signature of the arrestee but no signature
of any relative or respectable person of the locality, as required under Section
41B(b)(i) is available on the said arrest memo and therefore, the said arrest
memo is also not in conformity with law.
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13. While it is correct that Section 41B(b)(i) requires the arresting officers to
obtain signatures of the relatives, etc., of the arrested person on the arrest
memo, the mere failure to do so would not ipso facto mean that the grounds of
arrest have not been made known to the accused person in writing when his
own signature is present therein. Therefore, I do not find any force in the
aforesaid submission of the learned counsel. From the above, it is quite evident
that the grounds of arrest were made known in writing to the accused persons
on that very day of the arrest itself and there has been no violation of the
mandate of Article 22(1) of the Constitution.
14. Now coming to the question of compliance with Section 50(A) Cr.PC
regarding intimation of the grounds of arrest to the relatives/friends etc., of the
accused person, it is seen from the arrest memo itself that a note has been
appended thereto, stating that intimation of arrest was given by Md. Amir Khan
to his brother-in-law on his Mobile No. 6009889146 at about 10:40 AM and the
signature of the accused person appears under the said note. Although the said
arrest memo has been annexed as Annexure-7 series to the instant bail
application, there is no averment in the bail application itself that no such
communication was made to the brother-in-law of the accused as stated in the
arrest memo. Similar is the case with the co-accused Md. Habibur Rahman,
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wherein the note appended to the arrest memo states that intimation of arrest
was given by Md. Habibur Rahman to his wife on her Mobile No:9863582723 on
18.10.2023. Similar note in respect of petitioner No. 3 Faruque Khan also
appears in his arrest memo intimating his wife. None of these have been
disputed in the bail application. A perusal of the record also reveals that notices
dated 17.10.2023 addressed to the relatives of the accused persons stating the
grounds of arrest were also issued although there is no proof of service.
15. The Hon'ble Supreme Court in Vihaan Kumar vs. State of Haryana & Anr.,
reported in 2025 LiveLaw (SC) 169 has held that the grounds of arrest are
required to be communicated in writing to the relatives/friends/nominated
persons of the accused and failure to do so 'may' render the arrest illegal. At
this stage, what is extremely important to notice is that the addresses of the
relatives of the accused persons show that they are residents of Manipur.
Judicial notice of the fact has to be taken that at the time of occurrence i.e.
17.10.2023, Manipur was in the throes of ethnic violence and it could not have
been very easy to serve such notices to the said persons and also to obtain
proof of service. The decision in Vihaan Kumar (supra) cannot be read as
permitting of no exception regardless of the circumstances. The use of the term
'may' would prima facie support this view. Moreover, the decision in Vihaan
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Kumar (supra) was rendered on 07.02.2025 i.e., much after the date of
occurrence i.e., 17.10.2023. The Hon'ble Supreme Court in Pankaj Bansal vs.
Union of India, reported in (2024) 7 SCC 576, which was delivered on
03.10.2023 i.e., prior to the occurrence, had laid down the requirement of
furnishing the grounds of arrest to the arrested person in writing but had made
it retrospective in operation by use of the word " Henceforth", which was
affirmed by the Hon'ble Supreme Court in the case of Ram Kishor Arora vs.
Directorate of Enforcement: (2024) 7 SCC 599.
16. The learned counsel for the petitioner has relied upon the decision of our
High Court wherein a Co-ordinate Bench has held that though in the case of
Pankaj Bansal (supra), the words "Henceforth" was used meaning thereby that
the above requirement would be applicable from the date of pronouncement of
judgment in Pankaj Bansal (supra), yet there is no such direction in the case of
Vihaan Kumar (supra) and that being so, since judicial decisions are presumed
to have retrospective application unless mentioned otherwise, the contention of
the prosecution that Vihaan Kumar (supra) cannot be given retrospective effect,
cannot be concurred with. It is the considered view of this Court that since it
has been specifically stated in Pankaj Bansal (supra) that the requirement of
furnishing of grounds of arrest in writing to the accused would only have
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prospective operation and as the subsequent judgment in Vihaan Kumar (supra)
on the same issue did not mention otherwise, the additional requirement of
furnishing the grounds of arrest to the relatives/friends/nominated persons of
the accused introduced therein would also have to be read in prospective terms,
in the absence of any stipulation otherwise, in view of the fact that giving of
retrospective operation in the later case with regard to the requirement of
furnishing of grounds of arrest in writing to the accused person would nullify the
effect of Pankanj Bansal (supra), wherein only prospective operation of such
requirement has been stipulated. Furthermore, since the requirement of
furnishing the grounds of arrest to the accused person has been made
prospective, similar requirement in respect of furnishing of grounds of arrest in
writing to the relatives/friends/nominated persons can hardly be held to be a
requirement to be insisted upon retrospectively. From that point of view as well,
it appears that it was not mandatory for the investigating agency to furnish the
grounds of arrest in writing to the relatives/friends/nominated persons since the
occurrence took place prior to the decision in Vihaan Kumar (supra).
17. Furthermore, even if it were to be held that the decision in Vihaan Kumar
(supra) would operate retrospectively, it would come in conflict with the decision
in Pankaj Bansal (supra), as in that case, such retrospectivity per Vihaan Kumar
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(supra) would extend to a period even prior to the date of judgment in Pankaj
Bansal (supra) despite Pankaj Bansal itself operating prospectively. Under such
circumstance, assuming the existence of conflict of views, it is the prior decision
of a Co-ordinate Bench that would stand in view of the decision of the Hon'ble
Supreme Court in National Insurance Company Limited vs. Pranay Sethi ,
reported in 2017 16 SCC 680, wherein it was held that if there are conflicting
decisions of equal Benches of the Supreme Court, then the earlier decision
should be followed by the High Court. But upon a harmonious reading of the
aforesaid judgments, there does not appear to be any such conflict, if one were
to take the view that Vihaan Kumar (supra) is prospective in operation.
18. Furthermore, in State of Karnataka vs. Sri. Darshan Etc., reported in 2025
5 SCC OnLine SC 1702, while interpreting in Vihaan Kumar (supra) it has been
held that it is a settled principle that procedural lapses for furnishing of grounds
of arrest absence prejudice do not ipso facto render the custody illegal or
entitled the accused to be released and the test of demonstrable prejudice is to
be applied. While holding so, Vihaan Kumar (supra) was also discussed and
explained.
19. In the instant case, it is seen from the records that upon being produced
before the Magistrate, the petitioners had stated that they would engage
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counsel of their own which they did and subsequently also applied for bail.
Therefore, it does not appear that any demonstratable prejudice was caused to
the accused persons, merely due to non-service of written grounds of arrest
upon the relatives/friends/nominated person, if even it is assumed that such
was the case, because the very purpose of such intimation is to enable the
accused to apply for bail, as explained in Vihaan Kumar (supra).
20. It is also submitted on behalf of the petitioners that the petitioners have
been languishing in jail since 17.10.2023 and it is contended that in other similar
circumstances, other accused persons have been granted bail by this Court.
21. In Sri. Darshan Etc. (supra), the Hon'ble Supreme Court has reiterated its
decisions in State of UP Through CBI vs. Amarmani Tripathi , (2005) 8 SCC 21,
wherein the Court re-affirmed that the mere fact that the accused has
undergone certain period of incarceration by itself would not entitle the accused
to being enlarged on bail when the gravity of the offence alleged was severe. It
also referred to the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004)
7 SCC 528, wherein it was held that the mere fact that the accused has
undergone certain period of incarceration (3 years in this case) by itself, would
not entitle the accused to be enlarged on bail nor the fact that the trial is not
likely to be concluded in the near future either by itself or coupled with the
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period of incarceration would be sufficient for enlarging the appellant on bail
when the gravity of the offence is severe, and there are allegations of tampering
with the witnesses by the accused during the period he was on bail.
22. In the present case, the accused petitioners are charged with possession
of a commercial quantity of drugs and it need not be reiterated that the menace
of drugs has engulfed society in a massive way, destroying individuals as well as
families and is threatening to shake the very foundations of the lives of the
youth of our society. Hence, there cannot be any doubt with regard to the
gravity of the offence for the purpose of consideration of bail. Furthermore,
since the charge against the accused is that commercial quantity of drugs had
been recovered from their possession/constructive possession it cannot be said,
upon a perusal of the material on record, that there are reasonable grounds to
believe that the accused persons are not guilty of alleged offence and thereby,
the rigour of Section 37 of NDPS Act would be squarely attracted in the facts of
the case. Having regard to the above, the prayer for bail stands rejected at this
stage.
JUDGE
Comparing Assistant
