Page No.# 1/6 vs The State Of Assam
2025 Latest Caselaw 6931 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 3 September, 2025

                                                                         Page No.# 1/6

GAHC010113702025




                                                                   2025:GAU-AS:11914

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

                               Case No. : Bail Appln./1770/2025

            ZIOUR RAHAMAN @ RAHMAN
            S/O- ABDUR RAHMAN.
            R/O- VILL.- KEIBUNG MAKHA LEIKAI, P.S.- LILONG, DIST.- THOUBAL,
            MANIPUR



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM.



Advocate for the Petitioner   : MR. M KHAN, MR. N J DUTTA,MS J AKTAR,MR A K DAS

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                           ORDER

Date : 03-09-2025

Heard learned counsel Mr. N.J. Dutta for the petitioner Ziour Rahaman @ Rahman, who has filed this application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer for bail as he has been behind bars since 17.08.2023 in connection with Special (Nar) Case No. 153(M)/2023 arising out Page No.# 2/6

of Manikpur Police Station Case No. 151/2023 registered under Sections 22(c)/25/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 and added Sections 23(c)/27(A) of NDPS Act, pending in the Court of Special Judge, Bongaigaon.

2. Also heard learned Additional Public Prosecutor Mr. P.S. Lahkhar for the respondent State.

3. Learned counsel for the petitioner has submitted that the co-accused of the petitioner are on bail. Thus, the petitioner has prayed for bail on the ground of parity.

4. It is submitted that the petitioner has been incarcerated for a prolonged period. He has been behind bars for 2 (Two) years. The petitioner has prayed for bail, stating that the grounds of arrest have not been properly communicated to him and his right to personal liberty has been curtailed.

5. The petitioner has relied on the decision of the Hon'ble Supreme Court in the matter of Madhu Limaye and others reported in 1969 (1) SCC 292 wherein it has been held and observed that :-

"10. Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails. For example, the 6th amendment to the Constitution of the United States of America contains similar provisions and so does Article XXXIV of the Japanese Constitution of 1946. In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. The House of Lords in Christie & Another v. Leachinsky went into the origin and development of this rule. In the words of Viscount Simon if a policeman who entertained a reasonable suspicion that X had committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. Viscount Simon laid down several propositions which were not meant to be exhaustive. For our purposes we may refer to the first and the third :

"1. If a policeman arrests without warrant upon reasonable suspicion of Page No.# 3/6

felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

2. X X X X

3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained."

Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested.

"There is no need to explain the reasons of arrest if the arrested man is caught red- handed and the crime is patent to high Heaven."

The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply its mind to his case. The Criminal Procedure Code contains analogous provisions in Sections 60 and 340 but our Constitution-makers were anxious to make these safeguards an integral part of fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the Constitution) which corresponded to present Article 22 :

"Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found in the Criminal Procedure Code and thereby probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of Article 15-A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate the two provisions, because they are now introduced in our Constitution itself."

As stated in Ram Narayan Singh v. State of Delhi & Ors. this court has often reiterated that those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law. Whenever that is not done the petitioner would be entitled to a writ of Habeas Corpus directing his release.

11. It remains to be seen whether any proper cause has been shown in the return for declining the prayer of Madhu Limaye and other arrested persons for releasing them on the ground that there was non-compliance with the provisions of Art. 22(1) of the Constitution. In Ram Narayan Singh's case it was laid down that the court must have regard to the legality or otherwise of the detention at the time of the return. In the present case the return, dated November 20, 1968, was filed before the date of the first hearing after the rule nisi had been issued. The return, as already observed, does not contain any information as to when and by whom Madhu Limaye Page No.# 4/6

and other arrested person were informed of the grounds for their arrest. It has not been contended on behalf of the State that the circumstances were such that the arrested persons must have known the general nature of the alleged offences for which they had been arrested; vide proposition No. 3 in Christie & Another v. Leachinsky. Nor has it been suggested that the show cause notices which were issued on November 11, 1968, satisfied the constitutional requirement. Madhu Limaye and others are, therefore, entitled to be released on this ground alone.

12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr. Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this court under Art.32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Art. 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye.

6. The petitioner has also relied on the decision of this Court in Amir Ali Versus The State of Assam in connection with Bail Appln./174/2025 wherein vide order dated 02.06.2025 it has been observed that :

"18. 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 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."

7. In the instant case, Annexure-5 is the notice and Annexure-6 is the arrest memo. The grounds of arrest were communicated to the petitioner and he has Page No.# 5/6

received the notice by affixing his signature in English. It is not at all believable that the petitioner did not understand the grounds of arrest communicated to him and it is held that the petitioner was well aware of the grounds of arrest.

8. Per contra, learned Additional Public Prosecutor has raised serious objection stating that this case is at the fag end of trial. 6 (Six) out of 9 (Nine) enlisted witnesses have already been examined. This is a serious offence and the petitioner is not entitled to bail. The petitioner is involved in transporting 4.892 kgs of Yaba tablets.

9. Learned Additional Public Prosecutor has also referred to the decision of the Hon'ble Supreme Court in Kasireddy Upender Reddy Versus State of Andhra Pradesh and Ors. in Criminal Appeal No. 2808 of 2025, SLP (Crl.) No. 7746 of 2025 wherein vide order dated 23.05.2025 it has been observed that :

"27. The object underlying the provision that the grounds of arrest should be communicated to the person arrested has been very succinctly explained in Vihaan Kumar (supra). On learning about the grounds for arrest, the person concerned will be in a position to make an application before the appropriate Court for bail, or move the High Court for a writ of habeas corpus. Further, the information will enable the arrested person to prepare his defence in time for the purposes of his trial. For these reasons, it has been provided by the Constitution that, the ground for the arrest must be communicated to the person arrested as soon as possible.

28. For the purposes of Clause (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. However, the information should be sufficient to enable the arrested person to understand why he has been arrested. The grounds to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case."

10. I have considered the submissions at the bar with circumspection. This case is at the fag end of the trial. It cannot be considered that trial has been procrastinated by the Court or by the prosecution. Trial has progressed at a regular pace. I have also considered the gravity of offence of transporting more than 4 kgs of Yaba tablets. It is trite law that the ground of parity in connection Page No.# 6/6

with serious offences, cannot be considered to be a ground for bail. Length of detention also in serious offences, cannot be considered to be a ground of bail.

11. At this juncture, I am not inclined to grant bail to the petitioner.

12. Petition is hereby rejected at this stage.

JUDGE

Comparing Assistant