Gauhati High Court
Bail Appln./624/2025 on 2 May, 2025
GAHC010044902025
2025:GAU-AS:5385
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
BAIL APPLICATION NO.624 OF 2025
Azibur Rahman @ Aziz @ Ajibur,
S/o- Faizul Hoque,
R/o- Amgaon, Kherbari,
P.S- Pragjyotishpur,
District- Kamrup (M), Assam.
.......Petitioner
-Versus-
The State of Assam,
Represented by Public Prosecutor,
Assam.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. Y. S. Mannan, Advocate.
For the Respondent(s) : Mr. R. R. Kaushik, Additional Public
Prosecutor, Assam.
Date of Hearing : 25.04.2025.
Date of Judgment : 02.05.2025.
Page 1 of 28
ORDER (CAV)
Heard Mr. Y. S. Mannan, learned Counsel
appearing for the petitioner. Also heard Mr. R. R. Kaushik,
learned Additional Public Prosecutor for the State
respondent.
2. This is the third bail application under Section 483
of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as “BNSS”) for granting regular bail
to the accused/petitioner i.e. Azibur Rahman @ Aziz @
Ajibur who was arrested on 09.04.2023 in connection with
NDPS Case No. 103/2023 arising out of
Pragjyotishpur P.S. Case No. 48/2023 registered
under Section 20(b)(ii)(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to
as “NDPS Act“). Presently the case is pending trial in the
Court of learned Additional Sessions Judge (FTC) No.3
Kamrup (M) at Guwahati.
3. The case of the prosecution is that one
Manmohan Chandra Roy, Sub-Inspector of Pragjyotishpur
Police Station lodged an ejahar before the Pragjyotishpur
Police Station alleging inter alia that on 08.04.2023 at 2 pm
the Officer-in-charge of the said Police Station having
received information that illegal business of Ganja
(Cannabis) is going on in the room of the
accused/petitioner, the police personnel proceeded to the
location and started investigation and upon such
investigation found the accused/petitioner in his room and
Page 2 of 28
he led the team to the place where the Ganja was kept
concealed in a drum. Accordingly, in the presence of
independent witnesses, the police personnel weighed the
drum along with Ganja and found the weight to be 22.225
kg and thereafter seized the same. Thereafter, the police
personnel along with the accused/petitioner proceeded to a
hotel from where one plastic white colour carry bag
containing 720 grams of Ganja was recovered from the
possession of the co-accused. Thereafter, another drum
containing Ganja weighing 16.525 kg was seized from an
abandoned school upon being shown by one Abdul Ali.
Accordingly, a case was registered under Section
20(b)(ii)(c) of the NDPS Act and the contraband articles
were all seized and the accused persons including the
accused/petitioner were arrested. Upon completion of
investigation, Charge-sheet was filed against the
accused/petitioner and the other co-accused and the trial
Court by order dated 09.08.2023 was pleased to take
cognizance against the accused/petitioner as well as the
other co-accused. Further, the trial Court by order dated
21.12.2023 framed charges against them. Accordingly, the
trial commenced. The accused/petitioner having being
denied bail earlier is facing the trial from behind the bar.
Hence, the present bail petition has been filed.
4. Mr. Y. S. Mannan, learned Counsel for the
accused/petitioner submits that the drums and contraband
articles were not separately weighed and no drug detection
kit test or colour test was conducted to identify whether
Page 3 of 28
the seized articles were contraband articles or not. He
further submits that the arresting authorities has not
followed the mandatory procedure for search and seizure
as mandated under Rule 3 (1)(2)(3)(4) and Rule 10 of the
NDPS (Seizure, Storage, Sampling and Disposal) Rules,
2022. In support of the aforesaid submission he relies
upon the following decisions: –
(i) Altaf Hussain Vs. The State of Assam, in B.A. No.
1048/2024.
(ii) Yusuf @ Asif Vs. State, in (Criminal Appeal
No.3191/2023) arising out of SLP (CRL) 3010/2023.
4.1. He further submits that the listed prosecution
witnesses have not implicated the accused/petitioner.
Therefore, there are reasonable grounds to believe that
accused/petitioner is not guilty. In support of the aforesaid
submission he relies upon the following decisions: –
(i) Md. Muslim Vs. State (NCT Delhi), reported in 2023
(18) SCC 166.
(ii) Rofiqul Islam Vs. The State of Assam, reported in
B.A. No.2013/2024.
4.2. He further submits that the petitioner having been
in custody since more than 2(two) years has suffered from
procastination and since only 6 witnesses out of the 19
listed prosecution witnesses have been examined till date,
the chances of the trial to be completed in the near future
is totally bleak. He accordingly submits that on this score
alone, the accused/petitioner is entitled to be released on
Page 4 of 28
bail. In support of the aforesaid submission he relies upon
the following decisions: –
(i) Ravi Prakash Vs The State of Orrisa, reported in
2023 SCC Online SC 1109.
(ii) Shariful Islam @ Sarif Vs The State of West
Bengal , reported in 2022 SCC Online SC 2069.
(iii) Zakirul Islam Vs. The State of Assam, in SLP
Criminal No. 3632/2024.
(iv) Nitish Adhikary @ Bapan Vs. The State of West
Bengal, in 2022 0 Supreme SC 1936.
(v) Chitta Biswas @ Subhas Vs. The State of West
Bengal, in (Criminal Appeal No. 245/2020 @ SLP No.
8823/2019.
(vi) Javed Gulam Nabi Sheikh Vs. The State of
Maharashtra, in Criminal Appeal No. 2787/2024 @
SLP (Crl) No. 3809/2024.
(vii) Md. Abdul Kalam and another Vs. The State of
Assam, in B.A. No. 1364/2024.
4.3. He further submits that the arresting authorities
have not informed the grounds of arrest to the
accused/petitioner at the time of arrest and hence, there is
gross violation of Article 21 and 22 of the Constitution of
India and also under Section 50 of the Criminal Procedure
Code (hereinafter referred to as “Cr.P.C“) corresponding to
Section 47 of the BNSS. Accordingly, he submits that the
arrest and subsequent remand is totally illegal and invalid
and hence, the accused/petitioner is liable to be released
Page 5 of 28
forthwith. In support of the aforesaid submission he relies
upon the following decisions: –
(i) Madhu Ray Vs. Union of India (NCB), in B.A. No.
768/2025.
(ii) Prabir Purkayastha Vs State (NCT Delhi), in SLP
No. (D) 42896/2023.
(iii) Vihaan Kumar Vs. State of Haryana, in SLP Crl.
No. 13320/2025.
5. Per contra Mr. R. R. Kaushik, learned Additional
Public Prosecutor for the State respondent submits that
since the contraband articles has been seized from the
possession of the accused/petitioner, hence it is not
necessary for the arresting authority to inform him the
grounds of arrest as it would be deemed that he knows the
consequences of possessing such contraband articles. In
support of the aforesaid submission he relies upon the
following decisions: –
(i) Christie and Another Vs. Leachinsky, reported in
1947 AELR 567.
(ii) Madhu Limaye & Ors., reported in (1969) 3 SCC
154.
(iii) Om Prakash Dwivedi Vs The State, reported in
1996 Cri LJ 603.
5.1. He further submits that the judgment and order
of the Apex Court in the case of Pankaj Bansal Vs.
Union of India and Others, reported in (2024) 7 SCC
Page 6 of 28
576, Prabir Purkayastha (Supra) and Vihaan Kumar
(Supra) shall apply prospectively and therefore the same is
not applicable in the facts of the present case. In support
of the aforesaid submission he relies upon the following
decisions: –
(i) Ram Kishore Arora Vs. Directorate of
Enforcement, reported in 2023 INSC 1082.
(ii) Ravinder @ Tanni @ Taran Vs. State of Haryana,
in CRM-M-62038-2024.
(iii) Saheer E P Vs. National Investigation Agency, in
Crl. A. No. 673/2024.
5.2. He further submits that since out of 19 witnesses
only 6 witnesses have been examined by the trial Court it
is not safe to conclude that there are reasonable grounds
to believe that the accused/petitioner is not guilty for the
alleged offence. He further submits that the length of the
period of the custody and/or the fact that the trial is likely
not to conclude in the near future themselves are not
enough for granting relief to the petitioner under Section
37 of the NDPS Act. In support of the aforesaid submission
he relies upon the following decisions: –
(i) Narcotics Control Bureau Vs. Mohit Aggarwal, in
Crl. A. No. 1001-1002 of 2022, arising out of SLP (Crl.)
No. 6128-29 of 2021.
(ii) Bablu Pandey Vs. The State of Assam, in Bail
Appln./2596/2024.
Page 7 of 28
6. I have given my prudent consideration to the
submissions advanced by the learned counsels appearing
on behalf of both the parties and also perused the
materials available on record. I have also considered the
case laws cited at the bar.
7. Pertinent to mention that this Court earlier by
orders dated 19.12.2023 and 27.09.2024 passed in Bail
Appln. No. 4279/2023 and Bail Appln. No. 2492/2024
respectively had rejected the bail application of the
accused/petitioner.
8. It appears that the instant third bail application is
primarily on the ground that the arresting authority having
not informed the grounds of arrest to the
accused/petitioner at the time of his arrest has
contravened and violated the constitutional and
fundamental rights under Article 22(1) of the Constitution
of India as well as Section 47 of BNSS and the length of
the period of the accused/petitioner’s custody and that the
trial is not likely to be concluded in the near future.
Undoubtedly, third bail application is not a review of the
earlier refusals and it is only when change of circumstances
exist and if the facts and circumstances of the case so
demands, the accused/petitioner may be released on bail.
9. Apt at the outset to refer to Article 21 of the
Constitution of India, which reads as hereunder: –
“21. Protection of life and personal
liberty.–No person shall be deprived of hisPage 8 of 28
life or personal liberty except according to
procedure established by law.”
10. Reading of the said Article, it is apparent that it is
in relation to protection of life and personal liberty and that
these two protections can only be taken away in
accordance with procedure established by law. Therefore,
no authority be it legislative, executive, or judicial can
deprive a person of his life or personal liberty unless it can
justify its action under a procedure established by law.
11. Apt also to refer to Article 22(1) of the
Constitution of India, which reads as hereunder: –
“22. Protection against arrest and detention
in certain cases.–(1) No person who is arrested
shall be detained in custody 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.”
12. A perusal of the first part of the aforesaid Article,
with which I am concerned in this case, it is apparent that
no person shall be detained in custody without being
informed of the grounds of such arrest and that it is the
fundamental rights of an arrested person to be informed of
the grounds of arrest at the time of his arrest. Therefore,
whenever there is an arrest, the grounds of such arrest
must be told to the arrestee. This right being guaranteed
to the arrestee under the Constitution of India, the same if
is taken away from the arrestee, it would be depriving him
of his right to liberty, which being his precious and
Page 9 of 28
fundamental right, such arrest would be in total violation of
his fundamental rights. Reference is made to the decision
of the Apex Court in the case of State of Madhya Pradesh
Vs. Shobharam and Others., reported in AIR 1966 SC
1910. Paragraph 20, 21, and 22 are reproduced hereunder
for ready reference:
“20. Article 22(1) is in two parts and it gives to
persons arrested a two-fold protection. The first is
that an arrested person shall not be detained in
custody without being told the grounds of such an
arrest and the other is that he shall be entitled to
consult and to be defended by a legal practitioner
of his choice. Article 22(2) gives a third protection
and it is that every person arrested and detained
in custody must be produced before the nearest
Magistrate within 24 hours excluding the time
necessary for the Journey from the place of arrest
to the Court of the Magistrate. In Ajaib Singh case
it was held that by „arrest‟ in the article is meant
physical restraint put on a person as a result of an
allegation or accusation that he has committed a
crime or an offence of a quasi-criminal nature or
that he has acted in a manner which is prejudicial
to the State or public interest. It was further held
that as arrests under warrants issued by courts
almost always indicate the reasons for the arrest
and require the person executing the warrant to
produce the person arrested before the court, such
arrests are outside Article 22(1) and (2). It was
thus held that the article was designed to give
protection against the act of the executive or other
non-judicial authority. That case arose under the
Abducted Persons (Recovery and Restoration) Act,
1949 (65 of 1949) under which persons abducted
from Pakistan were rescued. Such persons were
taken in custody and delivered to the custody of an
officer-in-charge of a camp for the purpose of return
to Pakistan. In deciding that this was not the kind
of arrest contemplated by Article 22 the court
examined what meaning could be given to thePage 10 of 28
word arrest. But the Bench guarded itself by
observing as follows:
‘…It is not, however, our purpose, nor do we consider
it desirable, to attempt a precise and meticulous
enunciation of the scope and ambit of this
fundamental right or to enumerate exhaustively the
cases that come within its protection.’
21. The case cannot be treated as having laid
down the law finally or exhaustively. Similarly, in
State of Uttar Pradesh v. Abdul Sammed involving
arrest and deportation of a person it was held by
majority that it was not necessary to produce such
a person before the Magistrate if he was produced
before the High Court and the High Court remitted
the person back to the same custody. Mr Justice
Subba Rao dissented with this view. Abdul
Samad‘s case was also not exhaustive because the
majority observed:
‘In view of the very limited question before us we do
not feel called upon to deal with the scope of Article
22(1) or 22(2) or of the two clauses read together in
relation to the taking into custody of a person for the
purpose of executing a lawful order of deportation….’
22. I consider that there is room for further
deliberation on the point. I do not see how we can
differentiate between arrests of different kinds.
Arrest is arrest, whatever the reason. In so far as
the first part of Article 22(1) is concerned it enacts
a very simple safeguard for persons arrested. It
merely says that an arrested person must be told
the grounds of his arrest. In other words, a
person’s personal liberty cannot be curtailed by
arrest without informing him, as soon as is
possible, why he is arrested. Where the arrest is
by warrant, the warrant itself must tell him, where
it is by an order, the order must tell him and where
there is no warrant or order the person making the
arrest must give that information. However, the
arrest is made, this must be done and that is all
that the first part of Article 22(1) lays down. I find
nothing in Article 22(1) to limit this requirement to
arrests of any particular kind. A warrant of a court
and an order of any authority must show on their
Page 11 of 28
face the reason for arrest. Where there is no such
warrant or order, the person making the arrest
must inform the person the reason of his arrest. In
other words, Article 22(1) means what it says in its
first part.”
13. Apt now to refer to Section 47 of BNSS which
reads as hereunder: –
“47. 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
arrest.
(2) Where a police officer arrests without warrant
any person other than a person accused of a non-
bailable offence, he shall inform the person
arrested that he is entitled to be released on bail
and that he may arrange for sureties on his
behalf.”
14. Reading of the aforesaid provision, it is clear that,
it is the duty of the police officer or arresting authority to
inform the person arrested without warrant, the grounds of
his arrest and his right to bail. In order to examine as
whether the grounds of arrest in the case in hand has been
informed to the accused/petitioner at the time of his arrest,
apt to refer to the Notice issued to the petitioner under
Section 50 of the Cr.P.C., (now Section 47 of the BNSS),
which reads as hereunder: –
“NOTICE TO THE ARRESTEE
U/S-50 Cr.P.C.
Reference: PGR PS C/No 48/23 P.S. Code No.
Page 12 of 28
U/s 20(b)(ii)(c) NDPS Act, 1985.
To, Ajibur Rahman @ Aziz (40 y)
So- Late Faizul Haque
R/O- Kherbari Amgaon
P.S. Pragjyotishpur
You are hereby informed that you have been
arrested in connection with the above reference
case. Since the case is nonbailable to Police, so you
are forwarded to the Honourable Court. You may
submit petition before Hon‟ble Court for your bail.
Signature of accused Signature of Police
Officer Causing
Arrest.
Name
Designation
Name of P.S.”
15. Perusal of the aforesaid notice, it appears that the
accused/petitioner is merely informed that he has been
arrested in connection with the case under reference.
However, no information whatsoever of the basic facts
constituting the grounds of arrest is told to the
accused/petitioner.
16. Apt also to refer to the Arrest Memo in relation to
the arrest of the petitioner, which reads as hereunder:-
“ARREST MEMO
HON‟BLE SUPREME COURT OF INDIA ORDER IN
WRIT PETITION NO. (CRL) 539 OF 1986
AND WRIT PETITION (CRL) No. 592 OF 1987
1. Name and particular of person arrested:
Ajibur Rahman @ Aziz (40 y)
So- Late Faizul HaquePage 13 of 28
R/O- Kherbari Amgaon
P.S. Pragjyotishpur
2. PS case Reference: PGR PS C/No. 48/23
U/s- 20(b)(ii)(c) NDPS Act, 1985.
3. Place of arrest: Pragjyotishpur P.S.
4. Date & time of arrest: 09/04/2023 @ 12.30 pm
5. Injury present at the time of arrest
(If yes, Make Inspection Memo) :- As per inspection
memo
6. Signature & Name of Relative/
Witness to arrest (At least one):-
7. Signature of arrested person:-
8. Signature full name of arresting
Officer:-
Signature of Investigating Officer”
17. Perusal of the Arrest Memo also indicates that
except the name, address and the case reference, there is
no mention about any other particulars of the offence as
well as the grounds of arrest.
18. Apt also to refer to the Inspection Memo in
relation to the arrest of the accused/petitioner, which reads
as hereunder: –
“INSPECTION MEMO
Police Station:- PRAGJYOTISHPUR
Write petition (original) No:- 829 of 1986 and 592 of
1997
1. Date 12/04/2023
2. Case reference:- PGR PS C/No. 48/23 u/s-
20(b)(ii)(c) NDPS Act.
3. Name and address of accused:-
Page 14 of 28
Ajibur Rahman @ Aziz (40 y)
So- Late Faizul Haque
R/O- Kherbari Amgaon
P.S. Pragjyotishpur
4. Wound of the body at time of medical
examination: No external injury seen.
5. Name and address of the Police Officer effecting
arrest:- SI (P) Alakesh Das
6. Name and designation of M.O. on duty:- Dr.
Subhajit Biswas.
7. Signature of the arrestee.
8. Signature of Police officer who escort the
arrestee:-
Signature of I/O”
19. Perusal of the Inspection Memo also indicates
that except the name, address and the Case reference
there is no mention about any other particulars of the
offence as well as the grounds of arrest.
20. Mr. R. R. Kaushik, learned Additional Public
Prosecutor, Assam upon a pointed query by this Court as
regard whether there is any material available in the case
record indicating that information of the basic facts
constituting the grounds of arrest is informed to the
accused/petitioner, he admits that there is no such
material available in the case record. Thus, it is an
admitted position that the grounds of arrest were not
informed to the accused/petitioner at the time of his arrest.
21. The short question therefore that falls for
determination in this case before going into the merit of
the other ground urged on behalf of the accused/petitioner
Page 15 of 28
is whether non-informing of the grounds of arrest to the
arrested person at the time of his arrest would make the
arrest illegal and whether the further detention of such
arrested person is justified.
22. As noted above, the requirement to communicate
the grounds of arrest to the arrestee flows from Article
22(1) of the Constitution of India. Therefore, it is the very
constitutional and fundamental rights of the arrestee to be
told about the grounds of his arrest. Hence, any
infringement of this fundamental right would necessarily
vitiate the process of arrest. 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.
23. Reference in this regard is made to the decision
of the Apex Court in the case of Vihaan Kumar (Supra).
Paragraphs 12, 13, 14, 16 and 21 of the aforesaid decision
are reproduced hereunder for ready reference: –
“12. This Court held that the language used in
Articles 22(1) and 22(5) regarding communication
of the grounds is identical, and therefore, this
Court held that interpretation of Article 22(5) made
by the Constitution Bench in the case of Harikisan
v. State of Maharashtra3, shall ipso facto apply to
Article 22(1) of the Constitution of India insofar as
the requirement to communicate the ground of
arrest is concerned. We may also note here that in
paragraph 21, in the case of Prabir Purkayastha2,Page 16 of 28
this Court also dealt with the effect of violation of
Article 22(1) by holding that any infringement of
this fundamental right would vitiate the process of
arrest and remand. Paragraph 21 reads thus:
„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
committed at the time of arresting the
accused and the grant of initial police
custody remand to the accused.‟ (emphasis
added) 3 1962 SCC OnLine SC 117
13. In the case of Lallubhai Jogibhai Patel v. Union
of India, in paragraph 20, this Court held thus:
„20. It is an admitted position that the detenu
does not know English. The grounds of
detention, which were served on the detenu,
have been drawn up in English. It is true
that Shri C.L. Antali, Police Inspector, who
served the grounds of detention on the
detenu, has filed an affidavit stating that he
had fully explained the grounds of detention
in Gujarati to the detenu. But, that is not a
sufficient compliance with the mandate of
Article 22(5) of the Constitution, which
requires that the grounds of detention must
be „communicated‟ to the detenu.
„Communicate‟ is a strong word. It means
that sufficient knowledge of the basic facts
constituting the „grounds‟ should be
imparted effectively and fully to the detenu
in writing in a language which he
understands. The whole purpose of
communicating the „ground‟ to the detenu is
to enable him to make a purposeful and
effective representation. If the „grounds‟ are
only verbally explained to the detenu and
nothing in writing is left with him, in a
language which he understands, then thatPage 17 of 28
purpose is not served, and the constitutional
mandate in Article 22(5) is infringed. If any
authority is needed on this point, which is so
obvious from Article 22(5), reference may be
made to the decisions of this Court in
Harikisan v. State of Maharashtra [1962
Supp 2 SCR 918: AIR 1962 SC 911: (1962)
14 (1981) 2 SCC 427 Cri LJ 797) and
Hadibandhu Das v. District Magistrate
[(1969) 1 SCR 227: AIR 1969 SC 43:
1969 Cri LJ 274].” (emphasis added)
Therefore, as far as Article 22(1) is
concerned, compliance can be made by
communicating sufficient knowledge of the
basic facts constituting the grounds of arrest
to the person arrested. The grounds should
be effectively and fully communicated to the
arrestee in the manner in which he will fully
understand the same. Therefore, it follows
that the grounds of arrest must be informed
in a language which the arrestee
understands. That is how, in the case of
Pankaj Bansalı, this Court held that the
mode of conveying the grounds of arrest
must necessarily be meaningful so as to
serve the intended purpose. However, under
Article 22(1), there is no requirement of
communicating the grounds of arrest in
writing. Article 22(1) also incorporates the
right of every person arrested to consult an
advocate of his choice and the right to be
defended by an advocate. If the grounds of
arrest are not communicated to the arrestee,
as soon as may be, he will not be able to
effectively exercise the right to consult an
advocate. This requirement incorporated in
Article 22(1) also ensures that the grounds
for arresting the person without a warrant
exist. Once a person is arrested, his right to
liberty under Article 21 is curtailed. When
such an important fundamental right is
curtailed, it is necessary that the person
concerned must understand on what
grounds he has been arrested. That is whyPage 18 of 28
the mode of conveying information of the
grounds must be meaningful so as to serve
the objects stated above.
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.
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
Page 19 of 28
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.
21. Therefore, we conclude:
a) The requirement of informing a person arrested
of grounds of arrest is a mandatory requirement of
Article 22(1);
b) The information of the grounds of arrest must be
provided to the arrested person in such a manner
that sufficient knowledge of the basic facts
constituting the grounds is imparted and
communicated to the arrested person effectively in
the language which he understands. The mode
and method of communication must be such that
the object of the constitutional safeguard is
achieved;
c) When arrested accused alleges non-compliance
with the requirements of Article 22(1), the burden
will always be on the Investigating Officer/Agency
to prove compliance with the requirernents of
Article 22(1);
d) Non-compliance with Article 22(1) will be a
violation of the fundamental rights of the accused
guaranteed by the said Article. Moreover, it will
amount to a violation of the right to personal liberty
guaranteed by Article 21 of the Constitution.
Therefore, non-compliance with the requirements of
Article 22(1) vitiates the arrest of the accused.
Hence, further orders passed by a criminal court of
remand are also vitiated. Needless to add that it
will not vitiate the investigation, charge sheet and
trial. But, at the same time, filing of chargesheet
will not validate a breach of constitutional mandate
under Article 22(1);
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e) When an arrested person is produced before a
Judicial Magistrate for remand, it is the duty of the
Magistrate to ascertain whether compliance with
Article 22(1) and other mandatory safeguards has
been made; and
f) When a violation of Article 22(1) is established, it
is the duty of the court to forthwith order the
release of the accused. That will be a ground to
grant bail even if statutory restrictions on the grant
of bail exist. The statutory restrictions do not affect
the power of the court to grant bail when the
violation of Articles 21 and 22 of the Constitution is
established.”
24. Reading of the aforesaid judgment of the Apex
Court, it is clear that the requirement of informing a person
arrested of grounds of his arrest is a mandatory
requirement of Article 22(1) and when non-compliance
with the aforesaid requirement is alleged, the burden will
always be on the investigating officer/arresting officer to
show compliance with the requirements of Article 22(1)
and when a violation of Article 22(1) is established, it is the
duty of the Court to forthwith order the release of the
arrestee. It is further clear that the Apex Court has clearly
held in that decision that the statutory restriction also shall
not affect the power of the Court to grant bail when the
violation of Article 21 and 22 of the Constitution is
established. There cannot be any quarrel to the proposition
that the constitutional court has a duty to uphold the
Constitution and safeguard the fundamental rights of the
citizens guaranteed under the Constitution of India. Hence,
when violation of a fundamental right under Article 22(1) is
alleged for the first time in the subsequent bail application
after refusal of earlier bail application, the same cannot be
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ignored and it would be the duty of such Court to go into
the said contention and decide in one way or the other.
25. In the present case, it is an admitted position that
the accused/petitioner was not informed of the grounds of
his arrest. No documents whatsoever are available on
record to indicate that the grounds of arrest have been told
to the accused/petitioner. Moreover, the case record does
not indicate any contemporaneous record indicating that
the grounds of arrest were told/informed to the
accused/petitioner at the time of his arrest. Hence, I have
no hesitation in holding that the arrest of the
accused/petitioner is totally illegal and invalid on account
of failure to inform the grounds of arrest to the
accused/petitioner as mandated by Article 22(1) of the
Constitution of India.
26. This brings me to the contention of Mr. R.R
Kaushik, learned Additional Public Prosecutor, Assam that
the accused/petitioner having been caught red handed
with the contraband articles, there is no need for the
arresting authorities to inform him the grounds of his
arrest as he is deemed to know the consequences of
possessing the contraband articles. The aforesaid
contention of Mr. Kaushik, cannot be accepted inasmuch as
it is evident from the case records that the contraband
articles in question was shown to the police personnel by
the accused/petitioner, who was found in an abandoned
washroom near the building of one Sadhir Kumar Roy upon
being asked about the contraband articles, which he had
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allegedly kept concealed in a drum outside the room.
Therefore, it is not correct to say that the
accused/petitioner was caught red handed with the
contraband articles. Be that as it may, the right of
informing the arrestee being a constitutional and
fundamental right under the Constitution of India, the said
mandatory obligation cannot be discharged merely on the
inference that since the arrested person has led to the
discovery of such contraband articles, he is presumed to
know the consequences of possessing such contraband
articles. To draw such inference, in the opinion of this
Court would be an attempt to take away the fundamental
and constitutional rights guaranteed to the arrestee, which
would not only be a breach of the constitution but would
also render the constitutional safeguard guaranteed under
Article 22(1) totally obsolete.
27. The decision of the House of Lords in the case of
Christie and Another (Supra), relied by the Mr. Kaushik,
learned Additional Public Prosecutor, Assam, wherein the
House of Lords have held that there is no need to explain
the reasons of arrest if the arrested man is caught red
handed and the crime is patent to high heaven is in the
context of the Laws of England. Unlike India, England does
not have a written constitution. Instead, its constitution is
unwritten and un-codified, meaning thereby, it is a
collection of statutes, common law, conventions and
historical documents. It is worthwhile to mention that this
includes laws passed by Parliament, judicial decisions
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establishing precedents, unwritten rules guiding political
behavior, and key historical documents like the Magna
Carta and the Bill of Rights. Further, in England, the power
of the Police to arrest is mainly regulated by the Police and
Criminal Evidence Act, 1984 (PACE) and the Codes of
Conduct. However, the position is not the same in India as
it is the Constitution which provides the arrestee the right
of being informed of the grounds of his arrest.
Undoubtedly, foreign judgments are not binding upon this
Court but are authorities of persuasive values to which this
Court may legitimately turn for assistance. However, they
must be judged in the context of India’s own laws and
legal procedure and the practical and ground realities in
India. Therefore, the aforesaid decision of the House of
Lords is not applicable in the context of the Indian
Constitution and hence, is of no relevance in the case in
hand.
28. Further, the argument of Mr. Kaushik, learned
Additional Public Prosecutor, Assam that the Apex Court in
Madhu Limaye & Ors., had endorsed the said view
adopted by the House of Lords in Christie and Another
(Supra) is totally misplaced inasmuch as in that case the
circumstances were not such that the arrested persons
must have known the general nature of the alleged
offences for which they have been arrested. Hence, the
said decision of the Apex Court is also of no support to the
respondent.
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29. Furthermore, the argument of Mr. Kaushik,
learned Additional Public Prosecutor, Assam to the effect
that the judgment & order of the Apex Court in the case of
Pankaj Bansal (Supra) is prospective is of no relevance
in the facts and circumstances of the instant case
inasmuch as it is not the contention of the
accused/petitioner that the arrest is vitiated for not
communicating the grounds of arrest in writing. That apart,
all the case laws cited by Mr. Kaushik, learned Additional
Public Prosecutor, Assam have received due consideration
from this Court, however, the same are not applicable in
the facts of the instant case and hence are of no relevance.
30. It would also be worthwhile to mention that, it
also cannot be denied that the accused/petitioner has been
behind the bar for more than 2 years from the date of his
arrest and till now the prosecution has been able to
examine only 6 witnesses out of 19 nos. of listed witnesses
and it also cannot be denied that the prosecution may take
a considerable period for completion of the trial. That
apart, none of the listed witnesses, who have been
examined till date, have implicated the accused/petitioner.
31. Be that as it may, non-compliance of Article 22(1)
of the Constitution of India being clearly established in the
present case, the arrest of the accused/petitioner is totally
illegal and is vitiated. That being so, the rigor of Section 37
of the NDPS Act, 1985 shall not affect the power of this
Court to grant bail to the accused/petitioner. Hence, I shall
be failing in my duty, if the accused/petitioner is not
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released forthwith. Therefore, on this score alone, further
detention of the accused/petitioner in the custody is totally
unjustified.
32. Accordingly, the accused/petitioner namely,
Azibur Rahman @ Aziz @ Ajibur, shall be released on
bail in connection with the aforementioned case on
furnishing bail 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 Additional Sessions Judge,
(FTC) No.3 Kamrup (M) at Guwahati, subject to the
following conditions:
(i) that the accused/petitioner shall appear before the
Court of learned Additional Sessions Judge, (FTC)
No.3 Kamrup (M) at Guwahati, on each and every
date to be fixed by the Court;
(ii) that the accused/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 accused/petitioner shall submit his
Aadhar Card and PAN Card before the learned
Additional Sessions Judge, (FTC) No.3 Kamrup (M) at
Guwahati; andPage 26 of 28
(iv) that the petitioner shall not leave the jurisdiction
of the learned Additional Sessions Judge, (FTC) No.3
Kamrup (M) at Guwahati, without prior permission.
33. Before parting with the record of the case, I
would like to pen down my dissatisfaction and displeasure
as regards the non-compliance of the constitutional
requirement of informing the arrestee his right under
Article 22 of the Constitution of India by the
investigating/arresting authority whereby the constitutional
court is left with no option but to grant bail even in cases
of heinous and serious offence and cases under the Special
Act etc. I am thus of the firm opinion that unless and until
such investigating/arresting authority are made liable for
their lapses in complying with the mandatory requirements
relating to arrest, the constitutional safeguards guaranteed
to an arrestee shall continue being tinkered and violated.
That apart, it cannot be ruled out that the compliance of
the mandatory requirement relating to arrest is also
capable of being misused by the arresting authority at
times. I therefore, request the Chief Secretary to the
Government of Assam to look into the matter and take
appropriate steps not only for sensitizing strict compliance
of the mandatory requirements relating to arrest but also
for framing requisite guidelines making the concerned
arresting/investigating officer liable for non-compliance of
the requirement mandated under Article 22 of the
Constitution of India.
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34. Let a copy of the Court’s order be furnished to the
Public Prosecutor, State of Assam to enable him to forward
the same to the State Government for taking necessary
steps as indicated above.
35. Accordingly, the bail application stands allowed
and is disposed of.
JUDGE
Comparing Assistant
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