Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 28 April, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/5
GAHC010261162024
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3782/2024
MEGHAN PASWAN AND ANR
S/O DHAMAUL PASWAN,
R/O VILL- NONIYA TOLA,
DDHAPUR, P.O. AND P.S. BIBHUTIPUR, DIST. SAMASTIPUR, BIHAR.
2: DHARMENDAR PASWAN
S/O RAMVRIKSH PASWAN
R/O VILL-NEW DHANESPUR UTTAR
P.O. AND P.S. VIDHYAPATI NAGAR
DIST. SAMASTIPUR
BIHAR
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
28.04.2025
Heard Mr. M. Khan, learned counsel for the petitioners as well as Mr. P.
Borthakur, learned Additional Public Prosecutor for the State.
2. This is the third bail application filed under Section 483 of BNSS, the
Page No.# 2/5
petitioners, namely, Meghan Paswan and Dharmendar Paswan have sought
for bail in connection with Special (Nar) Case No. 50 (BGN)/2024 (arising out
of Bongaigaon GRPS Case No.12/2024) under section 22(b)(ii)C/29 of the
NDPS Act, pending in the Court of learned Special Judge, Bongaigaon.
3. It is submitted by the learned counsel for the petitioner that this is the
third bail application filed by the petitioners seeking bail. Earlier two bail
applications vide BA No. 1204/2024 dated 17.05.2024 and BA No.2187/2024
dated 29.08.2024 were rejected by this Court. However, this time the petitioners
prayed for bail on some new grounds that at the time of arrest of the petitioners
on 11.02.2024 when notice was served to the petitioners u/s 50 Cr.P.C., the
grounds of arrest were not communicated to the petitioners which violates their
fundamental right guaranteed under Article 22(1) of the Constitution of India,
which resulted the arrest of the petitioners as illegal and therefore, they should
no longer be retained in custody and be released on bail for the interest of
justice.
In support of his submission, learned counsel for the petitioners has relied
on the following case laws –
(1) (2024) 7 SCC 576 (Pankaj Bansal vs Union of India and
others).
(2) (2024) 8 SCC 254 (Prabir Purkayastha vs State (NCT of
Delhi).
(3) 2025 SCC online SC 269 (Vihaan Kumar vs State of
Haryana and another)(4) BA No. 403/2025 (Abu Bakkar vs the State of Assam).
(5) BA No. 142/2025 (Abul Khayer Md Siddique vs The
Page No.# 3/5State of Assam).
(6) BA No. 1017/2025 (Noman uddin vs the State of
Assam).
4. Per contra, Mr. Borthakur, 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 or the Section 50 notice
issued to the petitioners.
5. Having heard the learned counsel for the parties, it is not in dispute that the
notice served to the petitioners u/s 50 Cr.PC as well as arrest memo does not
show any grounds of arrest at the time of arrest of the petitioners.
6. In the case of Pankaj Bansal Vs Union of India, reported in (2023) SCC
Online (SC) 1244, the Hon’ble Supreme Court 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 and
the subsequent remand of the arrested person cannot be sustained.
7. In another case vide 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 offences. The accused has
Page No.# 4/5
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. 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.”
9. 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 Cr.P.C. notice served to the petitioners that the
accused petitioners were informed about the grounds of their arrest in
connection with Bongaigaon GRPS Case No.12/2024. Under such backdrop, this
Court by following the observation of the Hon’ble Supreme Court as above, is
Page No.# 5/5
inclined to grant bail to the petitioners.
10. Accordingly, the petitioners, named above, shall be released on bail on
furnishing bail bond of Rs.1,00,000/- each (Rupees One Lakh only) 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, Bongaigaon.
The direction for bail is further subject to the conditions that the petitioners:
(a) shall not leave the territorial jurisdiction of learned Special Judge,
Bongaigaon, 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 case; 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.
11. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant
[ad_1]
Source link