BEFORE
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
For Petitioner(s) : Mr. Koomar Chakraborty, Advocate.
Constitution of India.
2. One Sri Jitendra Tripura, S.I. of Police of Panisagar Police
and ultimately recovered 750 nos. of plastic pouch packets containing pink
10.5 Kg. Thereafter, he seized the vehicle along with such contraband
items and arrested the driver, namely, Ratan Nama Sudra. It is alleged that
3. The FIR was registered as Panisagar P.S. Case No.74/2024,
Substances Act, 1985 (for short, NDPS Act). As per the Arrest Memo, the
arrest of said Ratan Nama Sudra was effected on 04.11.2024 at 0215 hours.
Since then, he is in custody. Meanwhile, after investigation, the
4. The sole contention of the petitioner, as argued by learned
counsel Mr. Koomar Chakraborty, is that the ground of arrest in writing
Hon'ble Supreme Court in the case of Vihaan Kumar Vrs. State of
Haryana and Anr., reported in 2025 SCC Online SC 269.
According to Mr. Chakraborty, learned counsel, said arrest and subsequent
of the said accused person as illegal and ultra vires.
5. Learned Additional P.P., Mr. Rajib Saha has produced the
Supreme Court in the case of Kasi Reddy Upender Reddy Vrs. State of
Andhra Pradesh & Ors., [Criminal Appeal No. 2808 of 2025, decided on
communicated with the grounds of arrest immediately after his arrest. To
establish said fact, learned Additional P.P. also relies on the Arrest Memo
wherein at Sl. No.5 against the heading "ground of arrest" it is mentioned
as -"Above noted case reference". Learned Addl. P.P. also relies on the
6. Before further delving upon the factual aspects of the matter,
the position of the law in this regard is required to be examined. Article
22(1) of the Constitution of India gives protection against arrest and
detention keeping in view of the sacred right of individual of his personal
liberty as enshrined in Article 21 of the Constitution of India. The relevant
provision of Article 22(1) is extracted here-under:
"22. Protection against arrest and detention in certain
cases.--(1) No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his
choice."
7. Similarly, sub-section (1) of Section 50 of the Code of
Criminal Procedure and now Section 47 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short, BNSS) both envisage that every police officer or
other person arresting any person without warrant shall forthwith
communicate to him full particulars of offence for which he is arrested or
other grounds for such arrest.
8. While interpreting above said provisions, Hon'ble Supreme
Court in the case of Pankaj Bansal Vrs. Union of India, reported in
(2024) 7 SCC 576 held that to give true meaning and purpose to the
constitutional and statutory mandate of Section 19(1) of PMLA Act, 2002
of informing the arrested person of the ground of arrest, it would be
necessary, henceforth, that a copy of such written grounds of such arrest is
furnished to the arrested person as a matter of course and without
exception. The relevant paragraph nos. 38, 42 and 45 of the said decision
are extracted here-under:
"38. In this regard, we may note that Article 22(1) of the
Constitution provides, inter alia, that no person who is arrested shall be
detained in custody without being informed, as soon as may be, of the
grounds for such arrest. This being the fundamental right guaranteed to the
arrested person, the mode of conveying information of the grounds of arrest
must necessarily be meaningful so as to serve the intended purpose. It may
be noted that Section 45 PMLA enables the person arrested under Section
19 thereof to seek release on bail but it postulates that unless the twin
conditions prescribed thereunder are satisfied, such a person would not be
entitled to grant of bail. The twin conditions set out in the provision are
that, firstly, the court must be satisfied, after giving an opportunity to the
Public Prosecutor to oppose the application for release, that there are
reasonable grounds to believe that the arrested person is not guilty of the
offence and, secondly, that he is not likely to commit any offence while on
bail. To meet this requirement, it would be essential for the arrested person
to be aware of the grounds on which the authorised officer arrested him/her
under Section 19 and the basis for the officer's "reason to believe" that
he/she is guilty of an offence punishable under the 2002 Act. It is only if the
arrested person has knowledge of these facts that he/she would be in a
position to plead and prove before the Special Court that there are grounds
to believe that he/she is not guilty of such offence, so as to avail the relief of
bail. Therefore, communication of the grounds of arrest, as mandated by
Article 22(1) of the Constitution and Section 19 PMLA, is meant to serve
this higher purpose and must be given due importance.
* * *
42. That being so, there is no valid reason as to why a copy of
such written grounds of arrest should not be furnished to the arrested
person as a matter of course and without exception. There are two primary
reasons as to why this would be the advisable course of action to be
followed as a matter of principle. Firstly, in the event such grounds of
arrest are orally read out to the arrested person or read by such person
with nothing further and this fact is disputed in a given case, it may boil
down to the word of the arrested person against the word of the authorised
officer as to whether or not there is due and proper compliance in this
regard. In the case on hand, that is the situation insofar as Basant Bansal is
concerned. Though ED claims that witnesses were present and certified
that the grounds of arrest were read out and explained to him in Hindi, that
is neither here nor there as he did not sign the document. Non-compliance
in this regard would entail release of the arrested person straightaway, as
held in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51 :
(2024) 2 SCC (Cri) 1] . Such a precarious situation is easily avoided and
the consequence thereof can be obviated very simply by furnishing the
written grounds of arrest, as recorded by the authorised officer in terms of
Section 19(1) PMLA, to the arrested person under due acknowledgment,
instead of leaving it to the debatable ipse dixit of the authorised officer.
* * *
45. On the above analysis, to give true meaning and purpose to
the constitutional and the statutory mandate of Section 19(1) PMLA of
informing the arrested person of the grounds of arrest, we hold 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. The decisions of the Delhi High Court in Moin Akhtar
Qureshi [Moin Akhtar Qureshi v. Union of India, 2017 SCC OnLine Del
12108] and the Bombay High Court in Chhagan Chandrakant
Bhujbal [Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC
OnLine Bom 9938 : (2017) 1 AIR Bom R (Cri) 929] , which hold to the
contrary, do not lay down the correct law. In the case on hand, the admitted
position is that ED's investigating officer merely read out or permitted
reading of the grounds of arrest of the appellants and left it at that, which is
also disputed by the appellants. As this form of communication is not found
to be adequate to fulfil compliance with the mandate of Article 22(1) of the
Constitution and Section 19(1) PMLA, we have no hesitation in holding that
their arrest was not in keeping with the provisions of Section 19(1) PMLA.
Further, as already noted supra, the clandestine conduct of ED in
proceeding against the appellants, by recording the second ECIR
immediately after they secured interim protection in relation to the first
ECIR, does not commend acceptance as it reeks of arbitrary exercise of
power. In effect, the arrest of the appellants and, in consequence, their
remand to the custody of ED and, thereafter, to judicial custody, cannot be
sustained."
9. Thereafter, in the case of Ram kirshor Arora Vrs. Directorate
of Enforcement, (2024) 7 SCC 599, after taking into consideration the
ratio of Pankaj Bansal (supra), Hon'ble Apex Court held that the direction
given in Pankaj Bansal's case of furnishing of "grounds of arrest" in
writing was prospective and could not be applied retrospectively.
10. Thereafter, in the case of Prabir Purkayastha Vrs. State
(NCT of Delhi), reported in (2024) 8 SCC 254 under the provisions of
Unlawful Activities (Prevention) Act, 1967, again Hon'ble Supreme Court
reiterated the principle as laid down in Pankaj Bansal (supra) and held as
follows:
"30. Furthermore, the provisions of Article 22(1) have already
been interpreted by this Court in Pankaj Bansal [Pankaj Bansal v. Union of
India, (2024) 7 SCC 576] laying down beyond the pale of doubt that the
grounds of arrest must be communicated in writing to the person arrested
of an offence at the earliest. Hence, the fervent plea of the learned ASG that
there was no requirement under law to communicate the grounds of arrest
in writing to the appellant-accused is noted to be rejected.
11. It was also further observed therein at paragraph no. 48 that
there is significant difference in the phrase "reasons for arrest" and
"grounds for arrest". The "reasons for arrest" as indicated in the arrest
memo are purely formal parameters viz. to prevent the accused person
from committing any further offence; for proper investigation of the
offence; to prevent the accused person from causing the evidence of the
offence to disappear or tampering with such evidence in any manner; to
prevent the arrested person for making 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 the Investigating Officer. It was
further observed that these reasons would commonly apply to any person
arrested on charge of a crime whereas the "grounds of arrest" would be
required to contain all such details in hand of the investigating officer
which necessitated the arrest of the accused. Simultaneously, the "grounds
of arrest" informed in writing must convey to the arrested accused all
basic facts on which he was being arrested so as to provide him an
opportunity of defending himself against custodial remand and to seek bail
and therefore, "grounds of arrest" would invariably be personal to the
accused and cannot be equated with "reasons of arrest" which are general
in nature.
12. At Paragraph no. 19 of Prabir Purkayastha's case, it was
also observed that purpose of informing to the accused person the grounds
of arrest is salutary and sacrosanct inasmuch this information would be
only the effective means for the arrested person to consult his advocate;
oppose the police custody remand and to seek bail. According to the
Hon'ble Apex Court, any other interpretation would tantamount to diluting
the sanctity of the fundamental right guaranteed under Article 22(1) of the
Constitution of India.
13. It was further observed therein at Para 21 that the right to be
informed about the grounds of arrest flows from Article 22(1) of the
Constitution of India and any infringement of this fundamental right would
vitiate the process of arrest and remand. Mere fact that a charge-sheet has
been filed in the matter, would not validate the illegality and
unconstitutionality committed at the time of arresting the accused and the
grant of initial police custody remand to the accused.
14. Thereafter, in Vihaan Kumar (supra) taking note of the
decisions of Pankaj Bansal (supra) and Prabir Purkayastha (supra)
similarly, Hon'ble Apex Court held that the requirement of informing a
person arrested of ground of arrest is a mandatory requirement of Article
22(1) and information of grounds of arrest must be provided to the
arrested person in such a manner that sufficient knowledge of the basic
facts constituting the grounds of arrest is imparted and communicated to
the accused person effectively in the language which he understands. The
relevant portion of the paragraph no.13 is extracted here-under for better
understanding:
"13......Therefore, as far as Article 22(1) is concerned,
compliance can be made by communicating sufficient knowledge of the
basic facts constituting the grounds of arrest to the person arrested. The
grounds should be effectively and fully communicated to the arrestee in the
manner in which he will fully understand the same. Therefore, it follows
that the grounds of arrest must be informed in a language which the
arrestee understands. That is how, in the case of Pankaj Bansal, this Court
held that the mode of conveying the grounds of arrest must necessarily be
meaningful so as to serve the intended purpose. However, under Article
22(1), there is no requirement of communicating the grounds of arrest in
writing. Article 22(1) also incorporates the right of every person arrested to
consult an advocate of his choice and the right to be defended by an
advocate. If the grounds of arrest are not communicated to the arrestee, as
soon as may be, he will not be able to effectively exercise the right to
consult an advocate. This requirement incorporated in Article 22(1) also
ensures that the grounds for arresting the person without a warrant exist.
Once a person is arrested, his right to liberty under Article 21 is curtailed.
When such an important fundamental right is curtailed, it is necessary that
the person concerned must understand on what grounds he has been
arrested. That is why the mode of conveying information of the grounds
must be meaningful so as to serve the objects stated above."
15. It was also observed that when a 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 violation of his fundamental rights
guaranteed under Article 21 as well. However, it was again observed that
in every case, it may not be practicable to implement what is suggested in
Pankaj Bansal case, but if such course, as suggested, is followed, the
controversy about non-compliance will not arise at all. The relevant
paragraph no. 15 and the conclusion as arrived at Paragraph no. 21 therein
read as under:
"15. We have already referred to what is held in paragraphs 42
and 43 of the decision in the case of Pankaj Bansal. This Court has
suggested that the proper and ideal course of communicating the grounds
of arrest is to provide grounds of arrest in writing. Obviously, before a
police officer communicates the grounds of arrest, the grounds of arrest
have to be formulated. Therefore, there is no harm if the grounds of arrest
are communicated in writing. Although there is no requirement to
communicate the grounds of arrest in writing, what is stated in paragraphs
42 and 43 of the decision in the case of Pankaj Bansal are suggestions that
merit consideration. We are aware that in every case, it may not be
practicable to implement what is suggested. If the course, as suggested, is
followed, the controversy about the non-compliance will not arise at all.
The police have to balance the rights of a person arrested with the interests
of the society. Therefore, the police should always scrupulously comply
with the requirements of Article 22.
* * *
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 chargesheet 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 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."
16. Learned counsel Mr. Chakraborty also relies on another
decision of the Hon'ble Supreme Court in the case of Ashish Kakkar Vrs.
Union Territory of Chandigarh, [Criminal Appeal No. 1518 of 2025,
decided on 25.03.2025] wherein the Apex Court also taking note of ratio
laid down in Prabir Purkayastha observed that in the given facts of said
case, the Arrest Memo could not be construed as grounds of arrest, as no
other worthwhile particulars were furnished to the arrested person.
17. Later on, in another case i.e. in the case of Kasi Reddy
(supra), the Hon'ble Apex Court has reiterated the ratio laid down in
Vihaan Kumar. It is also observed at Para 28 that 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.
18. Now, taking note of all the above said authoritative
pronouncements, it emerges that grounds of arrest should be
communicated to the arrested person in writing, and though in every case,
it may not be practicable to convey the grounds or arrest in writing but if
the arrested person alleges non-compliance with the requirements of
Article 22(1), the burden will always be on the Investigating
officer/Agency to prove compliance with requirement of Article 22(1) and
such arresting authority shall have to show that grounds of arrest
containing basic facts constituting the grounds were communicated to the
arrested person effectively in the language which he understands and
method of communication was such that constitutional object was
safeguarded. Otherwise non-compliance of requirement of Article 22(1)
would vitiate the arrest of the accused person and his subsequent remand(s)
in the custody. As per Kasi Reddy, 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.
19. Now, in the case in hand, learned Addl. P.P. could not
produce any other material that grounds of arrest was communicated to the
present accused Ratan Nama Sudra in due compliance of Article 22(1) of
the Constitution. The entire Arrest Memo, according to the Prosecution,
which was supplied to the accused, is extracted here-under for better
appreciation:
"ARREST MEMO
District North Tripura P.S. Panisagar year 2024
FIR No./Other reference PNS P/S Case No. 2024 PNS 074 U/S 22(c)/25/29 of NDPS
Act, dated 04.11.2024.
2. Date and time of arrest : On 04.11.2024 at 0215 hrs.
3. Place of arrest : At Panisagar P/S Complex
4. Particulars of the person arrest
a) Name : Sri Ratan Namasudra (28)
b) Father's Name : Sri Mintu Namasudra
c) First alias :
d) Second alias :
e) Others alias :
f) Nationality : Indian
g) i) Passport No. of any : Addhar Card No.8238 8058 0477
ii) Date of Issue :
iii) Place of issue :
iv) Period of validity :
h) Religion : Hindu
i) Caste (ST/SC/)OBC/Gen) : SC
j) Permanent address with
Dist./P.S./Vill etc. : Vill-Karikhai, Purba Bazar, Bazari G/P,
k) Present address with Ward No.8, P/S Bazaricharra, Dist.
Dist./P.S./Vill etc. Karimganj, Assam.
5. Grounds of arrest : Above noted case reference
6. Injury if any present on the body of : No
the arrested of the time of arrest.
7. a) Whether the arrestee is made : Yes
aware that he has a right to inform
same one of his arrest.
b) Name and address of the person : Sri Mition Namasudra (35) S/o Sri
informed as to arrest on the request Mintu Namasudra of Karikhai, Purba
of the arrestee. Bazar, Bazari GP, W/No.8, P/S Bazari
Charra, Dist. Karimganj, Assam.
8. Name and full particulars of the
witness (at least one witness should
be a member of the family of the
arrestee or a respectable person of :
the locality from where the arrest is
made)
9 Counter Signature of the arrestee : Ratan Namasudra
A) Date 04.11.2024 B) Time of arrest 0215 hrs.
10. Signature of the arresting official : Sd/- (illegible)
Name : Rajib Adhikari
Rank : SI of Police
Number, if any : I/O of the case
Place : Camp at Panisagar P/S complex
Date : 04.11.2024."
20. On perusal of such Arrest Memo, nothing is found to presume
that the grounds of the arrest in any manner were communicated to the
arrested person. Here, against Sl. No.5 ground of arrest is mentioned is
only the case reference and nothing more than that. Therefore, this Court
has no hesitation to hold that the concerned arresting authority has
miserably failed to comply with the mandatory provision of Article 22(1)
of the Constitution of India in it's true spirit, rendering the arrest of Ratan
Namasudra as illegal and ultra vires being violative of Article 22(1) of the
Constitution and consequently, all subsequent remand order(s) of the
accused person in custody are also vitiated and are rendered illegal.
21. As a result, it is directed that accused Ratan Nama Sudra be
released forthwith and set at liberty. However, after being so released, he
shall appear before the learned Trial Court (Court of Ld. Special Judge)
within two weeks therefrom and on his appearance, he shall furnish a bond
to the satisfaction of Ld. Trial Court in accordance with Section 91 of the
BNSS, 2023 for an amount to be determined by learned trial Court failing
which, learned trial Court would be at liberty to take necessary steps
against the accused person in accordance with law for procuring his
attendance before the Court for proceeding with the trial. The accused
Ratan Nama Sudra is also further directed to regularly and punctually
attend the Court to face trial unless his presence is exempted, and to co-
operate with the Court without any interference in the trial.
22. With such observations and directions, the writ petition stands
disposed of. Interim application(s), if any, shall also stand disposed of.
Return the C.D. to learned Addl. P.P.
Copy of this order be communicated with the learned Special
Judge, North Tripura, Dharmanagar immediately.
JUDGE
SANJAY GHOSH Digitally signed by SANJAY GHOSH
Date: 2025.07.08 17:16:35 +05'30'
sanjay
