Gauhati High Court
Rijul Hoque vs The State Of Assam on 7 April, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010144542024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2100/2024
RIJUL HOQUE
S/O- SIRAJUL HOQUE,
R/O- VILLAGE MULLAPARA,
P.S- MANGALDAI, DIST- DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP ASSAM
Advocate for the Petitioner : NIMISH MAHAJAN, MR. D BORA,MR. P K DAS,MR. A
CHAUDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 07.04.2025
Heard Mr. N. Mahajan, learned counsel for the petitioner. Also heard Mr.
R.R. Kaushik, learned Additional Public Prosecutor for the State.
2. By this second bail application filed under section 483 of the Bharatiya
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Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Rijul Hoque,
has prayed for bail in connection with Spl(N) Case No. 10/2024 (arising out of
Sipajhar P.S. Case No. 323/2023) under Section 22(C) of NDPS Act, 1985,
pending in the court of learned Special Judge, Darrang, Mangaldai.
3. The prosecution case, in brief, is that on 03.10.2023, an FIR has been
lodged before the Officer-in-Charge of Siphajhar Police Station, alleging inter
alia that on 02.10.2023, at around 7:50 p.m., the officer-in-charge received a
secret information regarding an Alto car (bearing registration No. AS-01-JC-
6604) carrying a large quantity of contaminated drugs for sale. The vehicle was
reportedly traveling from Mangaldai towards Guwahati. However, inside the
Ghorabandha Petrol Pump, the vehicle was spotted, but the driver and
occupants of the vehicle fled away. Upon searching the vehicle, about 36,576
suspected Yaba tablets were recovered from a secret chamber of the vehicle
and the same was seized along with the vehicle.
4. The learned counsel for the petitioner has submitted that the petitioner
has been languishing in judicial custody for more than one year six months
since his arrest on 08.10.2023. It is also submitted that after completion of
investigation, charge sheet has been submitted vide C.S. No. 31/2024 dated
12.03.2024, though charge has not been framed in this case till date. It is
further submitted that the learned trial court granted bail to one of the co-
accused in this case.
5. The learned counsel for the petitioner has also submitted that the
petitioner is no way involved in the alleged offence. It is an admitted fact that
the accused/petitioner had purchased the aforesaid vehicle and in this regard,
an agreement was also executed on 06.07.2019 between the accused/petitioner
and the registered owner of the vehicle namely, Munna Kaur. Thereafter, the
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petitioner sold the said vehicle to one Haider Ali and only on the basis of the
statement of the original owner of the said vehicle i.e. Munna Kaur, the
accused/petitioner was arrested. Nothing has been recovered from the
conscious possession of the accused/petitioner. Moreover, the petitioner was
never present in the place of occurrence at the relevant time.
6. Further submission of learned counsel for the petitioner is that the Hon’ble
Supreme Court in the case of Pankaj Bansal vs. Union of India, reported in 2023
SCC Online (SC) 1244 has held that the written grounds of arrest must be
furnished to the arrested person as a matter of course and without exception, if
the same is not complied with, the arrest would be in violation of Section 19(1)
of the PMLA Act, 2002 consequently the arrest, subsequent remand of the
arrested person cannot be sustained.
7. It is also submitted that this proposition of law has been expounded by the
Hon’ble Supreme Court in the case of Prabir Purkayastha vs. State (NCT of
Delhi), reported in 2024 SCC Online (SC) 934, wherein it has been categorically
held that the law laid down in the case of Pankaj Bansal (supra) would be
squarely applicable in cases under the UA(P) Act or for that matter any other
offence(s). The accused has a fundamental and 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 and non supply of written grounds of arrest to
the arrested person would vitiate the arrest even if the case has been charge
sheeted.
8. The learned counsel for the petitioner has also referred another case law
vide Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 SCC Online
(SC) 269, wherein it has been held that not informing the arrested person of the
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grounds of arrest would amount to a violation of fundamental right guaranteed
under Article 22(1) of Constitution of India and this alone would be a ground to
grant bail to the accused even if statutory restrictions exist against the grant of
bail. According to the learned counsel for the petitioner, in the instant case, the
petitioner was never supplied with the full particulars of the offence for which
he was arrested or other grounds of arrest, at the time of his arrest, which is in
violation of Section 47(1) of BNSS corresponding to Section 50(1) of Cr.P.C.
rendering the arrest and the subsequent remand to the accused/petitioner
invalid. Accordingly, learned counsel for the petitioner submits that in view of
the aforesaid irregularities occurred during investigation, the petitioner may be
enlarged on bail.
9. 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 petitioner. 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 petitioner. However, learned
Additional Public Prosecutor has admitted that the grounds of arrest have not
been mentioned in the arrest memo or the Section 50 notice issued to the
petitioner.
10. I have considered the submission of the learned counsel for the parties
and I have also perused the trial court record.
11. Section 47 of BNSS (Section 50 Cr.P.C)- 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
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arrest.
12. Section 48 of BNSS (Section 50A Cr.P.C.)- Obligation of person making
arrest to inform about arrest, etc., to relative or friend- (1) Every police officer
or other person making any arrest under this Sanhita shall forthwith give the
information regarding such arrest and place where the arrested person is being
held to any of his relatives, friends or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information
and also to the designated police officer in the district.
13. Coming to the case in hand, notice issued to the petitioner under Section
50 Cr.P.C vide Sipajhar P.S. Case No. 323/2023 which is reproduced below-
“You are hereby informed that, you are under arrest in connection
with above reference case. So, you are forwarded to the Hon’ble Court.
You may submit petition before Hon’ble Court for your bail.”
14. Notice issued to the representative of the accused i.e. Sirajul Hoque, S/o
Lt. Sidique Ali under Section 50A Cr.P.C. in connection with Sipajhar P.S. Case
No. 323/2023 is as follows –
“You are hereby informed that the following person is appended in
connection with Case No. & Penal section of Law referred below-
Name & address of the arrested person- Rijul Hoque (30) S/o Sirajul
Hoque, vill.- Mullapara, Nagarbarhi P.S. Mongaldoi, Dist.- Darrang, Assam.
Case No. & Penal Sections of Law, GDE Reference & Circumstances-
Sipajhar P.S., C/No-323/2023 under Section 22(c) of NDPS Act.
Date and time of arrest- 08.10.2023 at 2.45 p.m.
Place of arrest- Sipajhar P.S.
Signature of the arresting officer- SI(P) Ranjan Tamuli
PS/OP- Sipajhar P.S.
Page No.# 6/7Date & Time- 08.10.2023
Signature of the addressee- Sirajul Hoque.”
15. From the aforesaid particulars, as mentioned in Section 50 and 50 A
notice, it does not disclose any grounds of arrest being informed to the
petitioner or his relative in connection with Sipajhar P.S. Case No. 323/2023.
16. 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.”
17. 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
informed of the grounds for such arrest or detention. In the instant case, there
is no reflection in Section 50/50A Cr.P.C. notice served to the petitioner and his
relative Sirajul Hoque dated 08.10.2023 that the accused petitioner was
informed about the grounds for his arrest in connection with Sipajhar P.S. Case
No. 323/2023. Under such backdrop, this Court by following the observation of
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the Hon’ble Supreme Court as above, is inclined to grant bail to the petitioner.
18. Accordingly, the petitioner, named above, shall be released on bail in
connection with Spl(N) Case No. 10/2024 (arising out of Sipajhar P.S. Case No.
323/2023) under Section 22(C) of NDPS Act, 1985, on furnishing bail bond of
Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties 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,
Darrang, Mangaldoi, Assam.
The direction for bail is further subject to the conditions that the petitioner:
(a) shall not leave the territorial jurisdiction of learned Special Judge,
Darrang, Mangaldoi, 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.
19. It is pertinent to mention here that the findings of this court that the
arrest of the petitioner stands vitiated will not affect the merits of the pending
case.
20. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant
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