Page No.# 1/12 vs The State Of Assam
2025 Latest Caselaw 6991 Gua

Gauhati High Court

Page No.# 1/12 vs The State Of Assam on 4 September, 2025

                                                                        Page No.# 1/12

GAHC010185442025




                                                                   2025:GAU-AS:12139

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

                                Case No. : Bail Appln./2695/2025

            SAPAN KUMAR TIWARI ALIAS SWAPAN KUMAR TIWARI AND ANR
            SON OF LATE VISWANATH TIWARI, RESIDENT OF KURMIDH RAILWAY
            COLONY, P.S. BALIDIH, DIST. BOKARO (JHARKHAND).

            2: SHIV PRATAP SINGH YADAV
             SON OF CALECTOR SINGH YADAV

            RESIDENT OF CHAKARHI CHAKWATH
            P.S. BIHIYA
            DIST. BHOJPUR
            BIHAR

            VERSUS

            THE STATE OF ASSAM
            REP BY THE LEARNED PP, ASSAM



Advocate for the Petitioner    : MR SARFRAZ NAWAZ, SAMIM RAHMAN,MR A W AMAN,MR.
SURAJIT DAS

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

04.09.2025

1. Heard Mr. S. Nawaz, the learned counsel for the Page No.# 2/12

petitioners Also heard Mr. B. Sarma, the learned Additional Public Prosecutor, appearing for the State of Assam.

2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been filed by the petitioners, namely, (1) Sapan Kumar Tiwari@Swapan Kumar Tiwari and 2. Shiv Pratap Singh Yadav, who are detained behind the bars since 10.01.2025(for the last 208 days), in connection with NDPS Case No. 43/2025 under Sections 18(b)/22(c)/29 of the NDPS Act, 1985, pending before the Court of the learned Special Judge, Diphu.

3. The gist of accusation in this case is that on 10.01.2025, one Mintu Saikia had lodged an FIR before the Officer-in- Charge of Dillai Police station, inter-alia stating that on that day at around 11:30 AM, while conducting NAKA checking duty, a vehicle bearing Registration No. AS05H-9299 was intercepted and during search of the said vehicle, 9.110 kg of opium and 1.030 kg of suspected heroin was recovered from the said vehicle.

4. Both the petitioners were found inside the said vehicle. After completion of the investigation, charge sheet was laid against the above-named petitioners under Sections 18(b)/21(c)/25/29 of the NDPS Act, 1985.

5. The learned counsel for the petitioners has submitted that the petitioners are seeking bail, in this case, mainly on Page No.# 3/12

the grounds of non-compliance of Section 48 of the BNSS, as well as violation of the guidelines issued by the Apex Court in the case of "Vihaan Kumar Vs. State of Haryana and Another" reported in "(2025) 5 SCC 799" wherein it was observed that the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22, (1) of the Constitution of India, meaningful and effective, failing which such arrests may be rendered illegal.

6. The learned counsel for the petitioner has submitted that, in the instant case, the arresting authority had issued a W.T. Messages to the Officer-in-Charge of Balidih Police Station in Bokaro district of Jharkhand, in the State of Jharkhand, in respect of petitioner No. 1, as well as another W.T. Messages to the Officer-in-Charge of Bihiya Police Station the district of Bhojpur, in the state of Bihar, in respect of petitioner No.2.

7. The learned counsel for the petitioner submits that, both the W.T. Messages were addressed to the Officer-in-Charge of the aforesaid Police Stations, and there is nothing on record to show that, in fact, in pursuant to the said W.T. Messages, the family members, friends or nominated persons of the petitioners were communicated about the grounds of arrest of the petitioners.

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8. He further submits that, on bare perusal of the said W.T. Messages would reveal that it is only an intimation regarding the arrest of the petitioners, without mentioning in the said W.T. Messages anything about the grounds for which the petitioners have been arrested. He, therefore, submits that there is a violation of the directions of the Apex Court issued in the case of "Vihaan Kumar Vs. State of Haryana and Another" (supra) in this case, and consequently the Fundamental Rights of the petitioners guaranteed to them under Article 22, (1) of the Constitution of India, have been violated in this case.

9. On the other hand, the learned Additional Public Prosecutor submits that when the petitioners were produced before the Sub-Divisional Judicial Magistrate (at Bokajan) on 11.01.2025, the petitioners have intimated the learned Magistrate that their family members can engage counsel on their own which according to the learned Additional Public Prosecutor is indicative of the fact that the family members of the petitioners were aware about the grounds for which the petitioners were arrested.

10. He further submits that as the petitioners have themselves stated before the Magistrate that their family members can engage counsel on their own and as in the arrest memo prepared after the arrest of the present petitioners grounds of arrest are mentioned in detail and the Page No.# 5/12

thumb impression or signatures of the petitioners were also obtained therein, which shows that the petitioners were aware about the grounds of arrest and they are not prejudiced in any manner.

11. He further submits that in view of the judgment of the Apex Court in the case of " State of Karnataka Vs. Sri Darshan etc." reported in "(2025) SCC Online SC 1702,"

the Apex Court has held that while Section 50 of the Code of Criminal Procedure (Cr.P.C.) (which corresponds to Section 47 of the BNSS), is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining the alleged procedural lapse. The mere absence of written grounds of arrest does not ipso facto render arrest illegal unless it results in demonstrable prejudice or denial of fair opportunity to defend.

12. The learned Additional Public Prosecutor also submits that in the aforesaid case, the Apex Court also observed that judicial precedents have clarified that substantial compliance with the constitutional and statutory requirement is sufficient unless demonstrable prejudice is shown.

13. He also submits that the Division Bench of this Court in the case of "National Investigation Agency Vs. Thangminlen Mate @ Lenin Mate" (order dated 21.08.2025 in Criminal Appeal No. 234/ 2025) has held that Page No.# 6/12

in view of the judgment of the constitution bench of the Apex Court in the case of "National Insurance Company Limited Vs. Pranay Sethi and Others" reported in (2017) 16 SCC 680, the decision of the Apex Court in the case of "Vihaan Kumar Vs. State of Haryana and Another"

(supra) would be applicable as precedent. The learned Additional Public Prosecutor submits that the said observation is only with regard to the failure to comply with the requirement of furnishing the grounds of arrest immediately after the arrest is made and not otherwise. He submits that the Division Bench of this Court has not stated anything regarding the observation of the Apex Court in the case of "State of Karnataka Vs. Sri Darshan etc." (supra) that mere absence of written grounds of arrest does not ipso facto render the arrest illegal unless it results in demonstrable prejudice or denial of fair opportunity to defend.

14. In response to the submissions made by the learned Additional Public Prosecutor, the learned counsel for the petitioners has submitted that in the case of " National Investigation Agency Vs. Thangminlen Mate @ Lenin Mate" (supra), the Division Bench has clarified that the requirement of furnishing grounds of arrest under Section 47 of the BNSS, 2023 is still there. However, it has clarified that if same may not be communicated immediately it shall have to be furnished within a reasonable period of time.

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15. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides.

16. On perusal of the records, it appears that in this case there is nothing apart from the W.T. Messages sent to the Officer-in-Charge of the jurisdictional Police Stations, where the family members of the petitioners reside, whereby the intimation of arrest of the present petitioners were sent to the jurisdictional Police Stations for forwarding the same to the family members of the petitioners. On bare perusal of the said W.T. Messages, it is apparent that the said W.T. Messages are intended to communicate only the fact regarding the arrest of the petitioners and it is devoid of any grounds for which the petitioners were arrested in the aforesaid case.

17. There is also nothing to show that in pursuant to the said W.T. Messages, the Officer-in-Charge of Balidih Police Station as well as the Bihiya Police Station have communicated the fact of arrest of the petitioners to their family members. Thus, it appears that there is non- compliance as regards the requirement of communicating the grounds of arrest, in writing, to the friends, family members or nominated persons of the petitioners as mandated by the Apex Court in the case of "Vihaan Kumar Vs. State of Page No.# 8/12

Haryana and Another" (supra).

18. In the case of "Vihaan Kumar Vs. State of Haryana and Another" (supra), the Apex Court has observed as follows:-

"19. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a Page No.# 9/12

person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

19. Whereas, in the case of "State of Karnataka Vs. Sri Darshan etc." (supra) the Apex Court has observed as follows:-

"20.1.5. While Section 50 Cr. P.C. is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does Page No.# 10/12

not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend."

20. Thus, it appears that in Vihaan Kumar Vs. State of Haryana and Another" (supra) the Apex Court has held that the mandate of Article 22 is not followed, while arresting a person, it not only violates the Fundamental Rights of the arrestee guaranteed to him under Article 22(1) of the Constitution of India, but also violates his Fundamental Rights under Article 21 of the Constitution of India and in such a case, the arrest of such an arrestee is rendered illegal. Whereas, in "State of Karnataka Vs. Sri Darshan etc." (supra) the Apex Court has observed that mere absence of written grounds does not ipso facto render the arrest illegal unless it results in demonstrable prejudice or denial of fair opportunity to defend.

21. Though the observation of the Apex Court in both the above cited cases appears to be somewhat divergent regarding requirement of furnishing written grounds of arrest to an arrestee, however, keeping in view of the ruling of the Constitution Bench of the Apex Court in the case of "National Insurance Company Limited Vs. Pranay Sethi and Others" (supra), wherein it was held that if there are conflicting decisions of equal benches of the Apex Court, the earlier decision should be followed by the High Court.

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Thus, this Court is of the view that the grounds of arrest, in writing shall have to be communicated not only to the arrested person, but also to the friends/relatives/nominated persons of an arrestee which has not been done in this case.

22. Thus, in the instant case, there has been violation in the constitutional mandate of furnishing the grounds of arrest, in writing, to the friends/relatives/nominated persons of the petitioners and on that count itself, they are entitled to get bail.

23. In view of the discussions made in foregoing paragraphs, both the above-mentioned petitioners are allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) each with a suitable surety of like amount, subject to the satisfaction of the learned Special Judge, NDPS, Karbi Anglong, Diphu, with following conditions:-

i. That the petitioners shall cooperate in the trial of NDPS Case No. 43/2025 under Sections 18(b)/22(c)/29 of the NDPS Act, 1985, pending before the Court of the learned Special Judge, Diphu.

ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioners shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioners;

iv. That the petitioners shall provide his contact details Page No.# 12/12

including photocopies of his Aadhaar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court;

v. That the petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall submit his leave address and contact details during such leave before the Trial Court; and

vi. That the petitioners shall not commit any offence while on bail.

24. With the above observation, this bail application is accordingly, disposed of.

25. Send back the Case Diary.

JUDGE

Comparing Assistant