Page No.# 1/ vs The Union Of India
2025 Latest Caselaw 7946 Gua

Gauhati High Court

Page No.# 1/ vs The Union Of India on 23 October, 2025

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GAHC010152672025




                                                                  2025:GAU-AS:14067

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

                               Case No. : Bail Appln./2282/2025

            FATIK ALI
            S/O- JAHURUDDIN,
            R/O- BHAKUAMARI, P.O.- ANANDA BAZAR, P.S.- SALBARI, DIST.- BAKSHA,
            ASSAM, PIN-781318.

            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE SC, NCB.


Advocate for the Petitioner   : MR. N J DUTTA, B AHMED

Advocate for the Respondent : SC, NCB,




                                      BEFORE
                       HON'BLE MRS. JUSTICE MITALI THAKURIA


                                          ORDER

Date : 23.10.2025.

Heard Mr. N.J. Dutta, the learned counsel for the petitioner. Also heard Ms. N. Kakati, the learned counsel appearing on behalf of Mr. S. C. Keyal, the learned Standing Counsel, NCB for the respondent.

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2. This is an application under Section 483 of BNSS, praying for grant of bail to the accused/petitioner, namely, Fatik Ali who has been arrested in connection with NDPS Case No.196/2024, corresponding to NCB Crime No. 20/2023, under Section 22(c) of the NDPS Act, 1985 (as amended), pending before the Court of learned Addl. District & Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M) at Guwahati, which is punishable under Sections 22(c)/28/29/35/54 of NDPS Act, 1985.

3. It is submitted by Mr. Dutta, the learned counsel for the petitioner, that the present accused/petitioner is innocent and no way connected in the alleged offence. The accused/ petitioner is in custody since 21.12.2023, almost more than one (1) year ten (10) months and out of the ten (10) prosecution witnesses, only three (3) have been examined till date. Thus the learned counsel for the petitioner submitted that the completion of the trial within a short period cannot be expected at this stage and hence, considering his prolonged period of incarceration, the accused/petitioner may be granted with the privilege of bail. Mr. Dutta further submitted that one of the co-accused has already been granted bail by this Court vide order dated 26.06.2025 and in that stage also only three witnesses were examined and in spite of lapse of another four months, the prosecution could not examine any other witnesses. So, considering the case of the present petitioner in the same footing and on the ground of parity also, his prayer may be considered.

4. In support of his case, Mr. Dutta relied on the following decisions of the Hon'ble Apex Court:

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533];

(ii) Shariful Islam @ Sharif Vs. The State of West Bengal [SLP(Crl) Page No.# 3/10

4173/2022 (Decided on 04.08.2022)]; and

(iii) Md. Muslim alias Hussain vs. State (NCT of Delhi), [2023 SCC OnLine SC 352].

5. He further raised the issue of the non-communication of the grounds of arrest to the present accused/petitioner at the time of issuing the notice under Section 50 of the Cr.P.C. as well as in the Memorandum of Arrest, which is a mandatory requirement. He submitted that non-compliance with this requirement amounts to a violation of Articles 21 and 22(1) of the Constitution of India. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself.

6. In this context also, Mr. Dutta, learned counsel for the petitioner, cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC

254.

7. He further submitted that the claim of the respondent that the accused/petitioner was provided with sufficient grounds of arrest through the communication of the Memorandum of Arrest is untenable. He contends that the said Memorandum of Arrest does not specify the offence allegedly committed by the accused/petitioner. It merely states that there is a prima facie case to proceed against the petitioner under Section 8(c), read with Sections 22(c) and 29 of the NDPS Act, which, according to him, does not constitute specific compliance with the constitutional mandate. He submits that this amounts to a clear violation of Articles 21 and 22(1) of the Constitution of India.

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Furthermore, he submits that the notice issued under Section 50 of the Cr.P.C. does not reflect any grounds of arrest, except for the case number and other general particulars. There is no mention of the specific grounds of arrest, which also constitutes a violation of Articles 21 and 22(1) of the Constitution of India. Accordingly, he submits that in light of these constitutional violations, as well as the prolonged incarceration of the accused/petitioner, the petitioner may be enlarged on bail. He further undertakes that, being a permanent resident of the stated locality, he will appear before the learned Trial Court as and when directed.

8. Mr. Dutta also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notices under Section 50 of Cr.P.C. is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

9. Ms. Kakati, the learned Standing Counsel for the NCB, submitted that a huge quantity of Methamphetamine tablets was recovered from the possession of the accused/petitioner. She further submitted that in the voluntary statement made by the accused/petitioner under Section 67 of the NDPS Act, the accused admitted his involvement in trafficking the said contraband. The accused described in detail how he was associated with the alleged offence, and it is also an admitted position that the entire contraband was recovered from his Page No.# 5/10

possession. She further submitted that, as per the charge sheet, the accused/petitioner travelled from Cooch Behar along with his associates and met them at Barpeta. Thereafter, they jointly trafficked 7.198 kilograms of Methamphetamine tablets, which were seized in the instant case. Accordingly, it is submitted that the recovery of the contraband was made from the conscious possession of the accused/petitioner, and therefore, she strongly opposed the grant of bail at this stage.

10. She further submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, she raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/ petitioner on bail at this stage.

11. She further submitted that the Memorandum of Arrest contains detailed information regarding the grounds of arrest and the offence committed by the accused/petitioner, and that the grounds of arrest were also communicated to the family member of the accused/petitioner. Thus, there was full compliance with the legal provisions while furnishing the Memorandum of Arrest. She also submitted that Section 50 of the Cr.P.C. does not specifically require that the grounds of arrest be communicated in detailed written form. She further submitted that the notice issued to the accused/petitioner under Section 50 of Page No.# 6/10

the Cr.P.C. reflects that proper intimation regarding the arrest was indeed given to him. Accordingly, she raised objection to the bail application and submitted that this is not a fit case for granting bail merely on the grounds of the prolonged period of incarceration or the alleged non-communication of the grounds of arrest. In that context, she also relied on a decision of the Coordinate Bench of this Court passed in Bail Application No. 1448/2025.

12. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

13. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to Section 47 of BNSS, rendering the arrest and subsequent remand of the accused/ petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested Page No.# 7/10

accused/petitioner would vitiate the arrest even if the case has been charge- sheeted.

14. It is evident from the Memorandum of Arrest issued to the accused/petitioner that it mentions the recovery of the contraband and states that there is a prima facie case against the accused/petitioner under Section 8(c), read with Sections 22(c) and 29 of the NDPS Act. However, it is a fact that there is no specific mention or detailed description of the alleged offence committed by the accused/petitioner. It is also an admitted position that Section 8(c) of the NDPS Act comprises various types of offences, but the Memorandum fails to specify which particular aspect or sub-offence under Section 8(c) is being invoked in the present case to attract the application of Sections 22(c) and 29 of the Act.

15. In the case of Vihaan Kumar (supra), the Hon'ble Apex Court clearly held that "the requirement of informing the person arrested on the grounds of arrest is not merely a formality, but a mandatory constitutional requirement under Article 22 of the Constitution."

16. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 of the Cr.P.C. and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 50 of the Cr.P.C., it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that Page No.# 8/10

for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

17. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22."

18. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for almost more than 1 (one) year & 10 (ten) months from the date of his arrest and till then, the prosecution has been able to examine only 3 (three) witnesses out of 10 (ten) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

19. In view of the entire facts and circumstances as discussed above, viz-a-viz non-mentioning of grounds of arrest in the Notice issued to the present Page No.# 9/10

accused/petitioner under Section 50 of the Cr.P.C., and also considering the period of incarceration already undergone by the accused/petitioner, i.e. 1 (one) year & 10 (ten) months, as well as the considering the view expressed by the Hon'ble Supreme Court in the case laws referred to hereinabove, further considering the case of the present petitioner in the same footing that the co- accused Babla Miah who has already been granted bail by this Court, I find that the petitioner is also entitled bail on the ground of parity.

20. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Additional District & Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M), the accused/petitioner, namely, Fatik Ali, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Additional District & Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M), on each and every date to be fixed by the Court;

(ii) that the petitioner 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;

(iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Additional District & Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M); and

(iv) that the petitioner shall not leave the jurisdiction of the learned Additional District & Sessions Judge-cum-Special Judge (NDPS) No.5, Page No.# 10/10

Kamrup (M), without prior permission.

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

JUDGE

Comparing Assistant