Gauhati High Court
Mojir Uddin vs The State Of Assam on 1 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010011132025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./153/2025
MOJIR UDDIN
LT HAJI ABDUS SALAM
r/o vill- KHAGAIL BAZAR , PS KARIMGANG, DIST. SRIBHUMI, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
01.05.2025
Heard Mr. M. Ahmed, learned counsel for the petitioner as well as Mr. K.
Baishya, learned Additional Public Prosecutor for the State.
2. This bail application has been preferred under Section 483 of BNSS by the
petitioner, namely, Mojir Uddin, who has sought for bail in connection with
Special NDPS Case No. 139/2023 arising out of Karimganj PS Case No.
816/2023 registered under section 21(b)/22(C)/25/29 of the NDPS Act,
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pending in the court of learned Special Judge, Sribhumi (Karimganj).
3. The matter relates to recovery and seizure of 1.263 kg YABA tablets from the
possession of the accused petitioner.
4. It is submitted by learned counsel for the petitioner that a report is received
from Inspector Officer in-charge of Karimganj PS through Additional District and
Sessions Judge (FTC) Sribhumi wherein it is reported that in connection with
Karimganj PS Case No. 816/2023, a notice under Section 50 Cr.P.C. was issued to
the arrested accused person namely, Mojiruddin son of Haji Abdus Salam of village-
Khagail Bazar, PS-Karimganj, Dist- Sribhumi.
5. The learned counsel for the petitioner has submitted that the petitioner is no
way involved in the alleged offence. It is also submitted that the accused/petitioner
has been languishing in judicial custody for more than 557 days since his arrest on
22.10.2023 and the prosecution has failed to complete the trial during such period.
6. By filing an additional affidavit it is further submitted by the learned counsel
for the petitioner that at the time of arrest of the accused/petitioner, notice under
section 50 Cr.P.C. corresponding to Section 47 of BNSS was served to the petitioner
wherein the ground of arrest has not been mentioned which violates his
fundamental rights guaranteed under Article 22(1) of the Constitution of India,
which resulted the arrest of the petitioner as illegal and therefore, he should no
longer be retained in custody and be released on bail for the interest of justice.
7. Per contra, Mr. Baishya, learned Additional Public Prosecutor has submitted
that on 22.04.2024 the Hon’ble Supreme Court vide SLP(CRL) 4118/2005 (Mihir
Rajesh Shah vs State of Maharashtra & another) has heard the matter on the same
issue and hearing was concluded before the Supreme Court and the Judgment is
reserved. Hence, the learned Additional Public Prosecutor has prayed to defer the
matter till pronouncement of the judgment by the Hon’ble Supreme Court.
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8. Having heard the learned counsel for the parties and on perusal of trial court
record, it is not in dispute that the notice served to the petitioner u/s 50 Cr.PC as
well as arrest memo does not reflect any grounds of arrest at the time of arrest of
the petitioner. As it appears that the judgment is not delivered by the Hon’ble
Supreme Court on the issue of grounds of arrest as above, as such, till date the
observation of Hon’ble Supreme Court in the judgment vide Vihaan Kumar vs.
State of Haryana, reported in 2025 SCC Online SC 269 will remain in force.
9. In the case of Vihaan Kumar (supra), wherein the Hon’ble Apex Court has
referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir
Purkayastha (Supra) and the Court held as follows –
“28. The language used in Article 22(1) and Article 22(5) of the Constitution of
India regarding the communication of the grounds is exactly the identical. Neither
of the constitutional provisions require that the “grounds” of “arrest” or
“detention”, as per the case may be, must be communicated in writing. Thus,
interpretation to this important facet of the fundamental right as made by the
Constitution Bench while examining the scope of Article 22(5) of the Constitution
of India would ipso facto apply to Article 22(1) of the Constitution of India insofar
as the requirement to communicate the grounds of arrest is concerned.
29. Hence, we have no hesitation in reiterating that the requirement to
communicate the grounds of arrest or the grounds of detention in writing to a
person arrested in connection with an offence or a person placed under preventive
detention as provided under Article 22(1) and Article 22(5) of the Constitution of
India is sacrosanct and cannot be breached under any situation. Non-compliance
of this constitutional requirement and statutory mandate would lead to the custody
or the detention being rendered illegal, as the case may be.”
10. 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
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applicable in cases under the UA (P) Act or for that matter any other offences. The
accused has 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.
11. 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.”
12. 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 petitioner that the accused petitioner was
informed about the grounds of his arrest in connection with Karimgajn PS Case No.
816/2023. Under such backdrop, this Court by following the observation of the
Hon’ble Supreme Court as above, is inclined to grant bail to the petitioner.
13. Accordingly, the petitioner, named above, shall be released on bail 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
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a Government employee of the State of Assam, to the satisfaction of learned
Special Judge, Sribhumi (Karimganj).
The direction for bail is further subject to the conditions that the petitioner:
(a) shall not leave the territorial jurisdiction of learned Special Judge, Sribhumi
(Karimganj) 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.
14. 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.
15. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant
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