Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 2 April, 2025
Page No.# 1/9
GAHC010018692025
2025:GAU-AS:3877
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./299/2025
ANWAR HUSSAIN
SON OF ABDUL SUKKUR. RESIDENT OF VILLAGE- GANGPAR,
PURNAGRAM PO- PS AND DISTRICT SRIBHUMI, 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,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
02.04.2025
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 483 of BNSS, 2023 praying for grant of bail
to the accused/petitioner, who has been arrested in connection with Special NDPS
Case No. 41/2024 [arising out of Karimganj P.S. Case No. 205/2024], registered under
Sections 22(C)/25/29 of NDPS Act which is pending before the Court of learned
Sessions Judge, Karimganj.
3. Scanned copy of the case record has already been received and I have perused
the same.
4. Mr. Choudhury, learned counsel for the petitioner has submitted that the present
accused/petitioner is innocent and he is no way involved in the alleged offence. He got
arrested in connection with this case only on suspicion and nothing has been
recovered from his conscious possession. He was arrested on 14.07.2024 and since
then, he is in custody. More so, he was arrested only on the basis of the statement of
the co-accused recorded under Section 67 of NDPS Act, which is not admissible as per
the ratio laid down by the Hon’ble Apex Court in the case of Tofan Singh Vs. State
of Tamil Nadu [(2021) 4 SCC 1], wherein it has been held that the statement of
the co-accused person recorded under Section 67 NDPS Act is not tenable in the eye
of law and it cannot be the basis of the conviction.
5. Mr. Choudhury, by filing an additional affidavit, further submitted that at the time
of the petitioner’s arrest, the grounds of arrest were not mentioned in the Arrest
Memo, the Inspection Memo, or the Notice issued to the petitioner under Section 50
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of the Cr.P.C. Furthermore, they were not communicated to his family members or
relatives, as mandated under Section 50A of the Cr.P.C. He contended that such non-
compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India,
as the disclosure of arrest grounds is a mandatory legal requirement. 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.
6. In this context, Mr. Choudhury, learned Counsel for the petitioner, also 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 (2024) 8
SCC 254.
7. He further 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 of 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.
8. Mr. Baruah, learned Additional Public Prosecutor, submitted that during the
investigation, the Investigating Officer collected sufficient incriminating materials
against the accused/petitioner, based on which the charge sheet was filed. However,
till date, the charges could not be framed by the learned trial Court. He further
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submitted that the I.O. has to investigate the case on the basis of the statement of
the co-accused in absence of any other materials available before him and during
investigation only, it has come out that the present accused/petitioner is involved in
the alleged offence. He further submitted that the case of Tofan Singh (supra) does
not bar the Investigating Agency to proceed with the investigation on the basis of
statement of the co-accused or on the basis of the statement recorded under Section
67 NDPS Act. He further submitted that there may not be any written communication
for grounds of 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.
9. Accordingly, Mr. Baruah, submitted that 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. Thus, he
raised vehement objection and submitted that considering the nature and gravity of
the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this
stage.
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 Notice issued to the present accused/petitioner under Section 50
of Cr.P.C. It is accordingly seen that while issuing 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 is arrested are being mentioned, but admittedly there is no mention
about the grounds of arrest in the Notice/Arrest Memo/Inspection Memo. Thus, it is
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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 she 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 of Cr.P.C, 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 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 Nos. 19, 21 & 48 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
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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
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. 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:
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“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 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
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)
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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 view of the entire discussions made above, it is the opinion of this Court that
the period of incarceration undergone by the accused/petitioner may not be a good
ground for considering his bail application at this stage as the charge-sheet was filed
on 24.09.2024. However, considering the fact that the grounds of arrest were not
communicated to the petitioner or mentioned in the Notice issued to the present
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accused/petitioner under Section 50 of Cr. P.C., this Court find it a fit case to extend
the privilege of bail to the accused/petitioner.
17. 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 Sessions Judge,
Karimganj, Assam, the accused/petitioner, namely, Anwar Hussain, be enlarged on
bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Sessions
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 her Aadhar Card and PAN Card before the
learned Sessions Judge, Karimganj; and
(iv) that the petitioner shall not leave the jurisdiction of the learned Sessions
Judge, Karimganj, without prior permission.
18. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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