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Gauhati High Court
Page No.# 1/ vs The State Of Assam on 29 April, 2025
Page No.# 1/11
GAHC010032772025
2025:GAU-AS:5192
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./472/2025
BASUDEV DAS AND ANR
S/O- ANIL DAS, RESIDENT OF VILLAGE GARIGAON BIDYANAGAR PS
JALUKBARI DIST KAMRUP (METRO), ASSAM
2: RAHUL DAS
S/O- LATE KHAGEN DAS VILLAGE BORIHAT P.S. MIRZA DISTRICT.
KAMRUP (RURAL) ASSA
VERSUS
THE STATE OF ASSAM
REP BY the PP, ASSAM
Advocate for the Petitioner : MR SISHIR DUTTA, MR. S DUTTA,MS S MOCHAHARI
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 29.04.2025
Heard Mr. S. Dutta, learned counsel for the petitioner. Also
heard Mr. B. Sarma, learned Additional Public Prosecutor, for the State
respondent.
2. This is an application filed under Section 483 of the Bharatiya
Page No.# 2/11
Nagarik Suraksha Sanhita, 2023 seeking regular bail to the petitioners
i.e. Basudev Das and Rahul Das, who have been arrested on
06.10.2023 in connection with Bazaricherra P.S. Case
No.204/2023 dated 07.10.2023 registered under Section
22(c)/25/29 of the NDPS Act, 1985 corresponding to Special (NDPS)
Case No.131 of 2023 pending before the Court of Special Judge,
Karimganj (now Shibhumi)
3. The brief facts of the case is that on 06.10.2023 at about 4.30
p.m., the informant namely S.I Pranab Mili lodged an F.I.R at
the Bazaricherra P.S. to effect that on 06/10/2023 at around 04.00 am,
one 6 (Six) wheeler brick red colour (front side) container body truck
bearing Registration No-AS 01MC 8580 was arriving at the naka check
point, which was coming from Lowairpoa side for Tripura was signalled
to be stopped by the naka party. As per routine of naka checking duty
the truck was parked in a safe place and started thorough checking of
the truck. The truck was driven by a person, Viz. Basudeb Das-32 yrs,
S/O Anil Das and one helper, Rahul Das, aged about- 18 years, S/O-
Lt. Khogen Das. During checking, some cartons and bags were
unloaded from the container of the truck and accordingly after
unloading a huge quantity of Codeine Phosphate Cough Syrups which
were packed/wrapped with different types of clothes. Accordingly the
information was reported by the SI to the officer-in-charge,
Bazaricherra P.S and other superior officers. As there was urgency to
conduct search and for detention as the drugs were likely to be
transported to some unknown place in no time, the authorization from
a Gazetted Officer as per Section 42 of the NDPS Act could not be
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obtained immediately. Then the SI served two separate notices U/S 50
of the NDPS Act and started to search for narcotics substance in the
presence of independent witnesses. The whole search process was
carried out in accordance with 50(5) of the NDPS Act and 100 CrPC.
After completion of search of the vehicle and below mentioned articles
were recovered and seized.
i). One 6 wheeler container body truck, bearing Reg No. AS 01MC
8580.
ii). Total 9000 nos of Triprolidine Hydrochloride and Codeine Phosphate
Phensedyl cough Syrup packed in 31 nos. of bags. Weighing about
1089 KGs.
iii). One Registration Certificate of the vehicle in the name of one Mrs.
Rajesh, R/O Beltola, college road, Bongaon, Beltola, Guwahati.
iv). One black colour oppo phone belonging to Basudeb Das. bottles
codeine Phosphate Phensedyl cough syrup. After completion of all the
formalities, the naka team departed from the P.O. at around 4:30 pm
along with the inventory and other seized items and the petitioners.
Accordingly the SI, Pranab Mili requested the OC, Bazaricherra
P.S, to register a case against the petitioners. Thereafter, on receipt of
the said complaint, the Officer-in Charge of the Bazaricherra P.S.
registered the case vide Bazaricherra P.S. Case No. 204/2023 under
Sections 22 (C)/25/29 of the NDPS Act, 1985. Accordingly, the
petitioners were arrested. Hence, the instant bail application has been
filed.
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4. Mr. Mr. S. Dutta, learned counsel for the petitioners submits that
the arresting authority while arresting the petitioners have not
informed the grounds of arrests to them and as such, the fundamental
and constitutional rights guaranteed to them under Article 22(1) of the
Constitution of India have been totally infringed by the arresting
authority. He accordingly submits that the petitioners are entitled to be
released forthwith.
5. Per contra, Mr. B. Sarma, learned Additional Public Prosecutor,
Assam fairly draws the attention of the Court from the case records
that the Notice issued under Section 50 of Cr.P.C to the petitioners as
well as the Memo of Arrests do not indicate that the grounds of such
arrests have been informed to the petitioners at the time of his arrest.
6. I have considered the submissions advanced by the learned
Counsels for both the parties and also perused the material available
on record.
7. The primary ground urged in this bail application is as regard
non-compliance of the constitutional and fundamental right of the
petitioners guaranteed under Article 21 and 22(1) of the Constitution
of India. Apt to refer to Article 21 and 22(1) of the Constitution of
India, which reads as hereunder:-
“21. Protection of life and personal liberty.–No
person shall be deprived of his life or personal liberty
except according to procedure established by law.
22. Protection against arrest and detention in certain
cases.–(1) No person who is arrested shall be detained in
Page No.# 5/11custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his
choice.”
8. Perusal of the aforesaid provision, it is apparent that an arrestee
has a constitutional and fundamental right under the Constitution of
India to be informed about the grounds of his arrest at the time of his
arrest.
9. In the present case apt to refer to the notices issued to the
petitioners under Section 50 of the Cr.P.C., which reads as hereunder: –
“NOTICE
U/S- 50 C.R.P.C.
To,
Shri Basudev Das, 32 years
S/o- Anil Das
Vill- Garigaon, Bidyanagar
P/O-
Police Station- Jalukbari, Dist Kamarup (M), Assam
Ref:- BCR P.S. Case No- 204/23
U/s- 22(C)/25/29 NDPS Act.
P.S. Case No.- 204/23.
You are hereby inform that you are under arrest in connection
with above noted case. The case is non bailable to police. Hence,
you are/your relative not forwarded/forwarded before the
Hon’ble Judicial Court in connection with the case.
Signature of the Arrestee I/O of the Case
NOTICE
Page No.# 6/11U/S- 50 C.R.P.C.
To,
Shri Rahul Das, 18 years
S/o- Lt. Khagen Das.
Vill- Borihat
P/O-
Police Station- Mirza, Dist- Kamrup Rural, Assam
Ref:- BCR P.S. Case No- 204/23
U/s- 22(C)/25/29 NDPS Act.
P.S. Case No.- 204/23.
You are hereby inform that you are under arrest in connection
with above noted case. The case is non bailable to police. Hence,
you are/your relative not forwarded/forwarded before the
Hon’ble Judicial Court in connection with the case.
Signature of the Arrestee I/O of the Case”
10. Perusal of the aforesaid notice indicates that except the
name of the petitioners and case reference, no other information as
regards the offence or the grounds of arrests are intimated to the
petitioners in this notice.
11. Apt also to refer to the memo of arrests which reads as
hereunder: –
“ARREST MEMO
(1) Name and particulars of person arrested:
Shri Basudev Das, 32 years
S/o- Anil Das
Vill- Garigaon, Bidyanagar
P/O-
Page No.# 7/11
Police Station- Jalukbari, Dist Kamarup (M), Assam
2. Concerning P.S Case No./
GDE No. reference of Arrest:- BCR P.S. Case No- 204/23
U/s- 22(C)/25/29 NDPS Act.
3. Place of Arrest:- Bazaricharra P.S.
4. Date and Time of Arrest: 07/10/2023 at 10.30 AM.
5. Injuries present at time of Arrest:- As per inspection memo.
(If yes, make Inspection Memo on reverse)
6. Signature and Name of Relative/
Witness to Arrest (Atleast one):- WT Message sent to the O/C
Jalukbari P.S. to inform his
family members….
7. Signature of Arrested person:-
8. Signature & Full Name of Arresting-
Officer :-
ARREST MEMO
(1) Name and particulars of person arrested:
Shri Rahul Das, 18 years
S/o- Lt. Khagen Das.
Vill- Borihat
P/O-
Police Station- Mirza, Dist- Kamrup Rural, Assam
2. Concerning P.S Case No./
GDE No. reference of Arrest:- BCR P.S. Case No- 204/23
U/s- 22(C)/25/29 NDPS Act.
3. Place of Arrest:- Bazaricharra P.S.
4. Date and Time of Arrest: 07/10/2023 at 10.30 AM.
5. Injuries present at time of Arrest:- As per inspection memo.
(If yes, make Inspection Memo on reverse)
6. Signature and Name of Relative/
Witness to Arrest (Atleast one):- WT Message sent to the O/C
Page No.# 8/11Jalukbari P.S. to inform his
family members….
7. Signature of Arrested person:-
8. Signature & Full Name of Arresting-
Officer :- ”
12. Perusal of the memo of arrest also indicates that except the
name and particulars of the petitioners, date and time of arrest and
case reference, no other information as regards the offence or grounds
of arrests are mentioned. Similarly, the Inspection Memo which is also
reproduced hereunder for ready reference does not indicate any
particulars as regards the grounds of arrest being intimated to the
petitioners: –
“INSPECTION MEMO
Writ Petition (Criminal) Nos 539 of 1985 and 592 of 1997
1. Name of P.S.: Bazaricherra P.S.
2. Case No. BCR P.S. Case No- 204/23 U/s- 22(C)/25/29
NDPS Act.
3. Name and address of accused:
Shri Basudev Das, 32 years
S/o- Anil Das
Vill- Garigaon, Bidyanagar
P/O-
Police Station- Jalukbari, Dist Kamarup (M), Assam
4. Wound in body found at the time of examination:- No injury is
seen Covid-19 (Negative)
5. Name and designation of
Medical officer on duty (Seal):- Dr. Afjal Hussain, M.O. MBBS.
6. Name and Rank of Officer
who arrest:- S.I. Dipok Kr. Singha
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7. Signature of arrestee:-
8. Signature of Police Officer who
escort the accused:-
INSPECTION MEMO
Writ Petition (Criminal) Nos 539 of 1985 and 592 of 1997
1. Name of P.S.: Bazaricherra P.S.
2. Case No. BCR P.S. Case No- 204/23 U/s- 22(C)/25/29
NDPS Act.
3. Name and address of accused:
Shri Rahul Das, 18 years
S/o- Lt. Khagen Das.
Vill- Borihat
P/O-
Police Station- Mirza, Dist- Kamrup Rural, Assam
4. Wound in body found at the time of examination:- No injury is
seen Covid-19 (Negative)
5. Name and designation of
Medical officer on duty (Seal):- Dr. Afjal Hussain, M.O. MBBS.
6. Name and Rank of Officer
who arrest:- S.I. Dipok Kr. Singha
7. Signature of arrestee:-
8. Signature of Police Officer who
escort the accused:”
13. It appears from the materials placed before this Court
that there are no materials available in the case record to indicate that
the grounds of arrest have been informed to the petitioners at the
time of their arrest. Moreover, the case record does not indicate any
contemporaneous record indicating that the grounds of arrest were
Page No.# 10/11
informed to the petitioners.
14. There is no doubt that the requirement of informing a
person arrested of grounds of arrest is a mandatory requirement of
Article 22(1) of the Constitution of India. Non-compliance of Article
22(1) will be a violation of the constitutional and fundamental rights
guaranteed by the said Article. That apart, it will amount to a violation
of Article 21 of the Constitution of India. When a violation of Article 21
and 22 of the Constitution of India is established, the statutory
restrictions do not affect the power of the Court to grant bail. In fact,
it is the duty of the Court to forthwith order the release of the accused
when a violation of Article 22(1) is established (Refer:- Vihaan
Kumar Vs State of Haryana and Anr ., reported in 2025
SCConline SC 269). In the present case it is absolutely clear that the
grounds of arrest were not informed to the petitioners at the time of
their arrest, hence, the arrests of the petitioners are totally illegal. As
such, the arrests of the petitioner stands vitiated. That being so, the
rigor of Section 37 of the NDPS Act, 1985 does not affect the power of
this Court to grant bail to the petitioner. Therefore, further detention of
the petitioners in the custody is totally unjustified.
15. In view of the aforesaid, this Court is of the considered
opinion that the petitioners are liable to be released forthwith.
Accordingly, it is provided that on furnishing of a bail bond of Rs.
50,000/-(rupees fifty thousand) each, with two sureties of like
amount each, provided that one surety has to be a Government
Servant, to the satisfaction of the learned Special Judge (NDPS),
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Sribhumi (Karimganj) under the conditions that the petitioner:
(a) That the accused/petitioners shall regularly appear before
the learned trial Court on all dates to be fixed from time to time
till the case is disposed of;
(b) That the accused/petitioners 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; and
(c) That the accused/petitioners shall refrain from committing
any offences similar to the one of which they are accused;
16. In terms of the above, the bail application stands disposed of.
JUDGE
Comparing Assistant
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