Page No.# 1/ vs The State Of Assam on 28 March, 2025

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 28 March, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                        Page No.# 1/10

GAHC010117872024




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

                               Case No. : Bail Appln./1700/2024

            BHOLA SEKH AND ANR.
            S/O CHHIYATULLA SEKH
            R/O MOHISURA,P.S. NADIA
            DIST. NADIA, WEST BENGAL.

            2: SAURABH KUMAR
             S/O SUIL CHOUDHURY
            R/O DHOLBOJJA
            P.S. DHOLBOJJA
            DIST. VAGALPUR
             BIHAR

            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP , ASSAM

Advocate for the Petitioner   : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K
DAS

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                           ORDER

Date : 28.03.2025

Heard Mr. B.K. Mahajan, learned counsel for the petitioners. Also heard Mr.
R.R. Kaushik, learned Additional Public Prosecutor for the State.

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2. By this application filed under section 483 of the Bharatiya Nagarik
Suraskha Sanhita, 2023, the accused petitioners namely, Bhola Sekh and
Saurabh Kumar, have prayed for bail in connection with SPECIAL (NDPS) Case
No. 58 (H) /2024 (arising out of Lumding P.S. Case No. 10/2024) under Section
20(b)(ii)(C)/29 of NDPS Act, 1985, pending in the court of learned Special
Judge, NDPS, Hojai.

3. The prosecution case in brief is that on 28.01.2024, an FIR has been
lodged before the officer-in-charge, Lumding Police Station, stating inter alia
that on the tip of an information, police apprehended the present petitioners in
front of Employee’s Union, near Railway Foot Bridge, Lumding and twenty
numbers of white colour plastic packets weighing about 44 kg of suspected
ganja was recovered and seized and both the petitioners were arrested
accordingly.

4. The learned counsel for the petitioners submitted that the petitioners have
been languishing in judicial custody for more than one year since their arrest on
29.01.2024. Though charge was framed but only two witnesses were examined
till date.

5. Learned counsel for the petitioners has further stressed his argument on
the point that the accused/petitioners were never supplied with the full
particulars of the offence for which they were arrested or other ground(s) of
arrest at the time of their arrest continuing till date which is in violation of
Section 47(1) of BNSS corresponding to Section 50(1) of Cr.P.C. rendering the
arrest and subsequent remand of the accused petitioners invalid.

6. By referring the judgment of this Court vide Ajit Kumar Sarmah vs.
State of Assam, reported in 1976 SCC OnLine Gau 30, the learned counsel
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for the petitioner has pointed out that this Court has earlier resolved the issues
on the point of wrongful detention which is reproduced as follows-

“The provision of Section 50 is mandatory and must be strictly complied

with. A citizen’s liberty cannot be curtailed except in accordance with law.
Even if any communication about the offence was orally made by
respondent No. 3 to the petitioner, we do not know what kind of
communication was made, whether the communication of the full
particulars or the mere section of the offence was told to the petitioner. In
the circumstances, we hold that the arrest and detention of the petitioner
by respondent No. 3 was in violation of Section 50 Cr.P.C…….”

The learned counsel for the petitioner has also cited another case law
vide- Vihan Kumar vs. State of Haryana, reported in 2025 SCC
online SC 269.

7. According to the learned counsel for the petitioners, in the instant case, as
per arrest memo of the petitioners, the grounds of arrest have not been
mentioned which is mandatory in nature. As such, the petitioners are entitled
for bail due to such illegality committed at the time of their arrest.

8. Per contra, Mr. Kaushik, learned Additional Public Prosecutor for the State
has submitted that commercial quantity of contraband items were recovered
from the conscious possession of the petitioners. As the commercial quantity of
contraband items are involved in the instant case as such, the embargo under
Section 37 of NDPS Act will come into play. Hence, the Additional Public
Prosecutor has opposed in granting bail to the petitioners. However, learned
Additional Public Prosecutor has admitted that the grounds of arrest have not
been mentioned in the arrest memo of the petitioners.

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9. I have considered the submission of the learned counsel for the parties
and I have also perused the trial court record.

10. Section 50 of Cr.PC (Section 47 BNSS) reads as follows –

“1. Person arrested to be informed of grounds of arrest and of right

to bail –

(1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other
grounds for such arrest.

(2) Where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence, he
shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on
his behalf.”

11. Section 50 (A) of Cr.P.C. [Section 48 BNSS] reads as follows –

“50 A. Obligation of person making arrest to inform about the arrest,

etc., to a nominated person –

(1) Every police officer or other person making any arrest
under this Code shall forthwith give the information
regarding such arrest and place where the arrested
person is being held to any of his friends, relatives or
such other persons as may be disclosed or nominated by
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the arrested person for the purpose of giving such
information.

(2) The police officer shall inform the arrested person of
his rights under sub-section (1) as soon as he is brought
to the police station.

(3) An entry of the fact as to who has been informed of
the arrest of such person shall be made in a book to be
kept in the police station in such form as may be
prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom
such arrested person is produced, to satisfy himself that
the requirements of sub-section (2) and sub-section (3)
have been complied with in respect of such arrested
person.”

12. Article 22 of the Constitution of India deals with protection against arrest
and detention in certain cases which reads as follows –

“(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.

(2) Every person who is arrested and detained in custody shall be
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produced before the nearest Magistrate within a period of twenty-

four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the Magistrate and
no such person shall be detained in custody beyond the said period
without the authority of a Magistrate….”

13. On a bare look at the aforesaid provisions, it reveals that the aforesaid
provisions provide certain safeguards regarding arrest and detentions. It aims to
protect the rights and liberties of the individuals who are arrested or detained
by the authorities. It ensures that no person can be arrested or detained
without being informed of the grounds for such arrest or detention. They have
the right to know the reasons behind their arrest, enabling them to effectively
exercise their legal rights.

14. The question to be taken up in this case whether the accused/petitioners
are entitled for bail if grounds of arrest have not been disclosed in the arrest
memo.

15. In the case of Vihan Kumar (Supra), wherein the Hon’ble Apex Court has
referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir
Purkayastha (Supra) and the Court held as follows –

“28. The language used in Article 22(1) and Article 22(5) of the

Constitution of India regarding the communication of the grounds
is exactly the identical. Neither of the constitutional provisions
require that the “grounds” of “arrest” or “detention”, as per the
case may be, must be communicated in writing. Thus,
interpretation to this important facet of the fundamental right as
made by the Constitution Bench while examining the scope of
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Article 22(5) of the Constitution of India would ipso facto apply to
Article 22(1) of the Constitution of India insofar as the requirement
to communicate the grounds of arrest is concerned.

29. Hence, we have no hesitation in reiterating that the
requirement to communicate the grounds of arrest or the grounds
of detention in writing to a person arrested in connection with an
offence or a person placed under preventive detention as provided
under Article 22(1) and Article 22(5) of the Constitution of India is
sacrosanct and cannot be breached under any situation. Non-
compliance of this constitutional requirement and statutory
mandate would lead to the custody or the detention being
rendered illegal, as the case may be.”

16. In the aforesaid case, it was also observed that when an arrested person
is produced before a Judicial Magistrate for remand, it is duty of the Magistrate
to ascertain whether compliance with Article 22(1) has been made. The reason
is that due to non-compliance, the arrest is rendered illegal. Therefore, the
arrestee cannot be remanded after the arrest is rendered illegal. It is the
obligation of all the Courts to uphold the fundamental rights.

17. It is specifically mentioned in the case of Vihan Kumar (Supra) that 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.

18. Proceeding to the case is hand, the arrest memo issued against the
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petitioners which contains name and particulars of the persons arrested,
circumstances/P.S. Case/GDE reference of arrest, place of arrest, date and time
of arrest, injuries present at the time of arrest, signature and name of
relatives/witness to arrest, signature of arrested persons and full signature of
arresting officer.

19. From the aforesaid particulars, as mentioned in the arrest memo, it does
not disclose any grounds being informed to the petitioners of their arrest in
connection with Lumding P.S. Case No. 10/2024.

20. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs.
Subhash Sharma, it was held as follows-

“Once a court, while dealing with a bail application, finds that the

fundamental rights of the accused under Articles 21 and 22 of the
Constitution of India have been violated while arresting the
accused or after arresting him, it is the duty of the Court dealing
with the bail application to release the accused on bail. The reason
is that the arrest in such cases stands vitiated. It is the duty of
every Court to uphold the fundamental rights guaranteed under
Articles 21 and 22 of the Constitution. Therefore, when arrest is
illegal or vitiated, bail cannot be denied on the grounds of non-
fulfillment of twin tests under clause (ii) of sub-section 1 of Section
45 of PMLA.”

21. Situated thus, the settled principle of law is that an arrested person must
be informed of the grounds for his arrest and detention which is mandatory in
nature. Article 22 safeguards the individual against arbitrary arrest and
detention. It ensures that no person can be arrested or detained without being
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informed of the grounds for such arrest or detention. In the instant case, there
is no reflection in the Section 50 Cr.P.C. notice served to the petitioners dated
29.01.2024 that the accused petitioners were informed about the grounds for
their arrest in connection with Lumding P.S. Case No. 10/2024. Under such
backdrop, this Court by following the observation of the Hon’ble Supreme Court
as above, is inclined to grant bail to the petitioners.

22. Accordingly, the petitioners, named above, shall be released on bail in
connection with SPECIAL (NDPS) Case No. 58 (H) /2024 (arising out of
Lumding P.S. Case No. 10/2024), on furnishing bail bond of Rs.2,00,000/-
(Rupees Two Lakh only) each with two suitable sureties each of the like
amount, out of which, one of the sureties should be a Government employee of
the State of Assam, to the satisfaction of learned Special Judge, NDPS, Hojai,
Assam.

The direction for bail is further subject to the conditions that the
petitioners:

(a) shall not leave the territorial jurisdiction of learned Special Judge,
NDPS, Hojai, Assam without prior written permission from him/her;

(b) shall regularly attend the trial court and cooperate with the court for
early disposal of the trial; and

(c) 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 them from disclosing such facts to the Court.

23. It is pertinent to mention here that the findings of this court that the
arrest of the petitioners’ stands vitiated will not affect the merits of the pending
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case.

24. The bail application is disposed of accordingly.

JUDGE

Comparing Assistant