Gauhati High Court
Page No.# 1/ vs The State Of Assam on 1 April, 2025
Page No.# 1/10
GAHC010037262024
2025:GAU-AS:3825
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./562/2024
JABIR HUSSAIN
SON OF LT . ABDUL MONAF WARD NO-04 PS- KARIMGANJ, DIST-
KARIMGANJ, ASSAM.
VERSUS
THE STATE OF ASSAM.
REPRESENTED BY THE PP, ASSAM.
Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 01.04.2025
Heard Mr. H. R. Choudhury, learned counsel for the petitioner. Also heard
Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 439 of the Code of Criminal Procedure
Page No.# 2/10
praying for grant of bail to the accused/petitioner, who has been arrested in
connection with Special NDPS Case No. 81/2023, arising out of Karimganj P.S.
Case No. 507/2023, under Section 22(C)/29 of NDPS Act, 1985, pending before
the Court of learned Sessions Judge, Karimganj, Assam.
3. Scanned copy of the case record has already been received. Perused the
same. Heard both sides.
4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that
the present accused/petitioner is innocent and nothing has been seized from his
conscious possession. He got arrested in connection with this case only on
suspicion and for last 1 year and 9 months, he is custody. More so, he submitted
that there was no compliance of Section 42(1) of NDPS Act while arresting the
present accused/petitioner. The charge-sheet was filed on 31.10.2023, but till
date, no witnesses could be examined by the prosecution and therefore he
submitted that considering the period of long incarceration, the petitioner may
be enlarged on bail.
5. In that context, Mr. Choudhury also relied on following decisions:
(i) Sarija Banu alias Janarthani Janani & Anr. Vs. State through
Inspector of Police [(2004) 12 SCC 266]
(ii) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022
SCC OnLine SC 2068]
(iii) Shariful Islam @ Sharif Vs. State of West Bengal [Order
Page No.# 3/10dated 01.08.2022 in SLP Crl. No. 4173/2022]
(iv) Dhirendra Kr. Choudhury Vs. The State of Assam [Criminal
Appeal No. 3379/2024, arising out of SLP(Crl.) No.
5068/2024]
6. Mr. Choudhury further submitted that the grounds of arrest were also not
mentioned in the Arrest Memo as well as in the Notice issued to the present
petitioner under Section 50 Cr.P.C., which is mandatorily required and non-
compliance of the same is in violation of Articles 21 & 22(1) of the Constitution
of India. He further submitted that the accused/petitioner was arrested on
09.07.2023 and was remanded for judicial custody on the same day, but due to
non-mentioning of grounds of arrest in the Arrest Memo as well as in Notice
under Section 50 Cr.P.C., the arrest and the remand itself is illegal. 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.
7. In this context also, Mr. Choudhury, 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
Page No.# 4/10(2024) 8 SCC 254.
8. Mr. Choudhury 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 Notice under Section 50
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. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard
that during investigation, the I.O. collected sufficient incriminating materials
against the present accused/petitioner and 2.118 kg of suspected YABA tablets
were recovered from the conscious possession of the present petitioner and 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.
However, Mr. Baruah admitted that till date no witnesses could be examined by
the prosecution, though the charge-sheet has already been filed. He further
submitted that there may not be any written communication for grounds of
Page No.# 5/10
arrest, but from the materials available in the case record, it is very much
evident that the accused was informed about the grounds of arrest orally during
investigation and hence, he raised objection in granting bail to the accused/
petitioner.
10. 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 Arrest Memo and the Notice issued to the
present accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that
while issuing the said Arrest Memo as well as the 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.
11. 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
Page No.# 6/10
arrest to the arrested accused/petitioner would vitiate the arrest even if the
case has been charge-sheeted.
12. The Hon’ble Apex Court in the case of Prabir Purkayastha (supra), as
relied by the learned counsel for the petitioner, has held in paragraph No. 19 of
the judgment as under:
“19. Resultantly, there is no doubt in the mind of the Court that any person arrested
for allegation of commission of offences under the provisions of UAPA or for that
matter any other offence(s) has a fundamental and a statutory right to be informed
about the grounds of arrest in writing and a copy of such written grounds of arrest
have to be furnished to the arrested person as a matter of course and without
exception at the earliest. The purpose of informing to the arrested person the grounds
of arrest is salutary and sacrosanct inasmuch as, this information would be the only
effective means for the arrested person to consult his Advocate; oppose the police
custody remand and to seek bail. Any other interpretation would tantamount to
diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the
Constitution of India.
21. 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 the unconstitutionality 3 (2000) 8 SCC
590committed at the time of arresting the accused and the grant of initial police
custody remand to the accused.
48. It may be reiterated at the cost of repetition that there is a significant difference in
the phrase ‘reasons for arrest’ and ‘grounds of 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 tempering 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. 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
Page No.# 7/10arrested 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. Thus,
the ‘grounds of arrest’ would invariably be personal to the accused and cannot be
equated with the ‘reasons of arrest’ which are general in nature.”
13. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court
has held has under:
“14. 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 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.”
14. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest in the Arrest Memo as well as in the Notice issued
to the present accused/petitioner under Section 50 of 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 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
Page No.# 8/10
statutory restrictions under Section 37 of the NDPS Act, this Court is of the
considered opinion that 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 her 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.
15. 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.”
16. In the same time, it also cannot be denied that the accused/petitioner is
behind the bar for more than 1 (one) year, 9 (nine) months from the date of his
arrest and till then, the prosecution has not been able to examine any witness
and it also cannot be denied that to examine all the witnesses, the prosecution
may take a considerable period for completion of the trial.
Page No.# 9/10
17. 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
accused/petitioner under Section 50 Cr.P.C., and also considering the period of
incarceration already undergone by the accused/petitioner, i.e. 1 (one) year, 9
(nine) months, as well as considering the view expressed by the Hon’ble
Supreme Court in the case laws referred to hereinabove, this Court find it a fit
case to extend the privilege of bail to the accused/petitioner.
18. 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
Special Judge, Karimganj, the accused/petitioner, namely, Jabir Hussain, be
enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Karimganj, 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 Special Judge, Karimganj; and
Page No.# 10/10
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Karimganj, without prior permission.
19. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
[ad_1]
Source link