Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 22 April, 2025
Page No.# 1/9
GAHC010074792025
2025:GAU-AS:4801
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1084/2025
ABU BAKKAR SIDDIQUE
SON OF LATE SORHAB ALI
R/O VIL-BALADOBA
P.S. SOUTH SALAMARA,
DIST. SSM-MKCR, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. V A
CHOWDHURY,MR. D GAGAI
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/9
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 22.04.2025
Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A.
Choudhury, learned counsel for the petitioner. Also heard Mr. D. B. Goswami,
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 South
Salmara P.S. Case No. 12/2025, registered under Section 22(c)/29 of the NDPS
Act, 1985.
3. Case Diary, as called for vide Order dated 08.04.2025, has already been
received and I have perused the same.
4. It is submitted by Mr. Bora, learned Senior Counsel for the petitioner, that
the present accused/petitioner is innocent and he is no way connected in the
alleged offence. Nothing has been recovered from his conscious possession.
However, he has been arrested on 22.01.2025 and for last 91 days, he has been
in custody. More so, he submitted that while furnishing the Notice under Section
47 of BNSS as well as the Arrest Memo to the present petitioner, no grounds of
arrest mentioned which is mandatorily required and non-compliance of the same
is in violation of Articles 21 & 22(1) of the Constitution of India. He accordingly
submitted that all the full particulars of the offence, which is alleged to have
Page No.# 3/9
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.
5. In support of his submissions, Mr. Bora, learned Senior Counsel for the
petitioner, has 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.
6. Mr. Bora 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, he submitted that non-
mentioning of grounds of arrest while issuing the Arrest Memo or Notice under
Section 47 of BNSS 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.
7. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard
that from the materials available in the Case Diary and the statement of the
witnesses recorded under Section 161 Cr.P.C., there are sufficient incriminating
Page No.# 4/9
materials against the present accused/petitioner. He also 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.
8. Further Mr. Goswami 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. More so, he submitted that the case is still under
investigation and 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.
9. After hearing the submissions made by the learned counsels for both sides
and also on perusal of the Case Diary, it is seen that some incriminating
materials have been collected by the I.O. against the present petitioner showing
his involvement in the alleged offence. However, without going into the details
of the merit of the case, it is seen that while issuing the Notice under Section 47
of BNSS as well as the Arrest Memo, though the name and the address of the
accused/petitioner along with the case number as well as the Sections under
which he was being arrested mentioned, but admittedly there is no mention
Page No.# 5/9
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.
10. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of 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 arrest to the arrested accused/ petitioner would
vitiate the arrest even if the case has been charge-sheeted.
11. 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
Page No.# 6/9Constitution 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
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.”
12. 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
Page No.# 7/9arrest 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.”
13. 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 47 of BNSS 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 47 BNSS, 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) 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.
14. 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 and the
investigation is still under progress. However, considering the fact that the
grounds of arrest were not communicated to the petitioner or mentioned in the
Arrest Memo as well as in Notice issued to the present accused/petitioner under
Page No.# 8/9
Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to
the accused/petitioner.
15. 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, South Salmara, the accused/petitioner, namely, Abu Bakkar
Siddique, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall fully co-operate with the investigation of the
case and shall appear before the Investigating Officer as and when
required in connection with the investigation of the aforesaid P.S.
Case;
(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, South Salmara; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, South Salmara, without prior permission.
Page No.# 9/9
16. In terms of above, this bail application stands disposed of.
17. The Case Diary be returned.
JUDGE
Comparing Assistant
[ad_1]
Source link