Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 5 May, 2025
Page No.# 1/13
GAHC010091902025
2025:GAU-AS:5537
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1376/2025
KAPIL HUSSAIN @ KABIL HUSSAIN @ KABIL AHMED
S/O- ABDUL KARIM.
R/O-VILL- MUBARAKPUR ,
P.S -KARIMGANJ ,
DIST- SRIBHUMI ,ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP, ASSAM
Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 05.05.2025
Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Mr. D.
P. Goswami, learned Additional Public Prosecutor for the State respondent.
Page No.# 2/13
2. This is an application under Section 483 of the BNSS, 2023 praying for
grant of bail to the accused/petitioner, who has been arrested in connection
Special (NDPS) Case No. 11/2025, arising out of the Karimganj P.S. Case No.
65/2025, under Sections 22(c)/25/29 of the NDPS Act, 1985, pending before the
Court of learned Sessions Judge, Sribhumi.
3. It is submitted by Mr. Ahmed, learned counsel for the petitioner, that the
present accused/petitioner is innocent and he is no way connected in the
alleged offence. Nothing has been seized from his conscious possession.
However, he is in custody since 10.02.2025, and thus, the I.O. got sufficient
opportunity to interrogate the accused/petitioner keeping him in custody.
Further he submitted that the F.I.R. of the present case was lodged on
08.02.2025 and the petitioner got arrested in connection with this case on
10.02.2025 from a hospital. More so, as per the allegation of the F.I.R., the
petitioner fled away from the place of incident by keeping his scooty in an
abandoned condition and while chasing him by police, he sustained some
injuries and thereafter he got admitted in the hospital and after 2 (two) days of
the occurrence, he was arrested in connection with this case and thus, he
submitted that the police had the sufficient opportunity to provide him with the
grounds of arrest while issuing Notice under Section 47 of BNSS as well as in
the Arrest Memo. However, there is no grounds of arrest mentioned in the said
Arrest Memo as well as in the Notice under Sections 47 of BNSS, which itself is
in violation of Article 21 & 22(1) of the Constitution of India. It is the mandate
of the Constitution of India that while arresting the accused person, he as well
as his family members should be intimated the grounds of arrest.
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4. In this context, Mr. Ahmed, learned counsel for the petitioner, also cited
the following decisions of Hon’ble Supreme Court:
(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.
5. Mr. Ahmed 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, non-mentioning of grounds
of arrest while issuing the Arrest Memo and the 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.
6. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard
that the present accused/petitioner was caught red handed along with the
contraband and the recovery was made from his conscious possession, though
he was formally arrested after 2 (two) days from the hospital as he sustained
injury while he tried to fled away from the place of incident. More so, he
submitted that the case is of commercial quantity, and hence, the rigor of
Section 37 NDPS Act will follow. Accordingly, he submitted that the case is still
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under investigation and hence, at this stage, it cannot be held that the accused
person is not guilty of the offence or he will not commit similar kind of offence if
he is granted with the privilege of bail as required under Section 37 of the NDPS
Act.
7. Mr. Goswami, learned Additional Public Prosecutor, further submitted that
the mentioning of grounds of arrest in case of a person caught red handed was
never argued before the Hon’ble Supreme Court nor was pursued or considered
by the Hon’ble Supreme Court while passing the judgments in cases of Pankaj
Bansal Vs. Union of India, reported in (2024) 7 SCC 576; Prabir
Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; and
Vihaan Kumar Vs. State of Haryana & Anr., reported in 2025 SCC OnLine
SC 269. In those cases, the Hon’ble Supreme Court has passed the judgments
without considering the issue of necessity of informing the grounds of arrest to
a person caught red handed and thus, applying the “doctrine of sub-silentio” it
can be very well said that the judgments passed by the Hon’ble Supreme Court
in Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar
(supra) are not a precedent so far the cases where the accused person got
arrested red handed.
8. Accordingly, the learned Additional Public Prosecutor submitted that the
bail prayer of the present petitioner cannot be considered at this stage on the
ground of non-furnishing of the ground of arrest to the accused/petitioner. From
the facts and circumstances of this case itself, it is sufficient to hold that the
petitioner was well aware about the grounds when he was caught red handed
along with the contraband. Accordingly, Mr. Goswami submitted that the bail
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prayer of the present petitioner may be rejected.
9. In this context, Mr. Ahmed, learned counsel for the petitioner, further relied
on a decision of Hon’ble Supreme Court passed in the case of Jaseela Shaji
Vs. Union of India & Ors., reported in (2024) 9 SCC 53 and basically relied
on paragraph Nos. 20, 25 & 72 of the judgment, which read as under:
“20. It is immaterial whether the detenu already knew about their contents or not.
In Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709: 1981 SCC (Cri) 592] it was
held that the fact that the detenu was aware of the contents of the documents not
furnished was immaterial and non-furnishing of the copy of the seizure list was held to
be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and
has no access to his own documents. In Mohd. Zakir v. Delhi Administration [(1982) 3
SCC 216: 1982 SCC (Cri) 695] it was reiterated that it being a constitutional imperative
for the detaining authority to give the documents relied on and referred to in the order
of detention pari passu the grounds of detention, those should be furnished at the
earliest so that the detenu could make an effective representation immediately instead
of waiting for the documents to be supplied with. The question of demanding the
documents was wholly irrelevant and the infirmity in that regard was violative of
constitutional safeguards enshrined in Article 22(5).”
25. This Court further went on to hold that it is immaterial whether the detenu already
knew about their contents or not. This Court reiterated the position that it being a
constitutional imperative for the detaining authority to give the documents relied on
and referred to in the order of detention pari passu the grounds of detention. It has
been held that there is no question of demanding the documents.
72. We may only reiterate what has been laid down in the earlier judgments of this
Court that the Prison Authorities should ensure that the representations are sent to the
Competent Authorities immediately after the receipt thereof. In the present era of
technological development, the said representation can be sent through email within a
day. It is further needless to reiterate that the Competent Authority should decide such
representation with utmost expedition so that the valuable right guaranteed to the
detenu under Article 22(5) of the Constitution is not denied. In the matters pertaining
to personal liberty of the citizens, the Authorities are enjoined with a constitutional
obligation to decide the representation with utmost expedition. Each day’s delay
matters in such a case.”
10. Citing the above referred judgment, Mr. Ahmed, learned counsel for the
petitioner, submitted that it is fit case wherein the bail can be granted to the
present accused/petitioners on the ground of non-furnishing of grounds of
Page No.# 6/13
arrest to them in the Arrest Memo as well as in the Notice under Section 47 of
BNSS.
11. Mr. Ahmed also submitted that the issue of “caught red handed” is still
pending before the Hon’ble Apex Court in Special Leave to Appeal (Crl.)
No(s). 17132/2024, arising out of impugned final judgment and order
dated 25.11.2024 in CRWP No. 3533 passed by the High Court of
Judicature at Bomay (Mihir Rajesh Shah Vs. The State of Maharashtra
& Anr.), which is already reserved by the Hon’ble Supreme Court for
pronouncement of judgment, however the Hon’ble Supreme Court had already
released the accused persons on interim bail till disposal of the said appeal.
12. I have considered the submissions made by the learned counsels for both
sides and also perused the materials available on record as well as the
judgments cited by the learned counsels for both sides.
13. From the submissions made by the learned counsels for both sides, it is
seen that basically the issue raised by the petitioner is the non-communication
of the grounds of arrest to the present petitioner in the Arrest Memo as well as
in the Notice under Section 47 of BNSS. It is the admitted fact that the grounds
of arrest were not communicated to the present petitioners as well as to his
relatives as required under the provision of Sections 47 & 48 of BNSS. The
Hon’ble Apex Court in the cases of Pankaj Bansal (supra), Prabir
Purkayastha (supra) & Vihaan Kumar (supra), as referred above, had
discussed in detail in regards to non-communication of the grounds of arrest to
the accused persons and it is considered in various paragraphs of the judgments
Page No.# 7/13
that non-compliance of same is in violation of Article 21 & 22(1) of the
Constitution of India.
14. Further it is a fact that in the judgments, referred to hereinabove, the
Hon’ble Supreme Court had not discussed the issue of caught red handed and
no distinction was made in those judgments in regards to the arrest of the
accused person. But, in paragraph No. 31 of the judgment of Vihaan Kumar
(supra), the Hon’ble Supreme Court has held that all Courts, including the High
Court, have a duty to uphold fundamental rights. Once a violation of a
fundamental right under Article 22(1) was alleged, it was the duty of the High
Court to go into the said contention and decide in one way or the other. For
ready reference, paragraph No. 31 of the said judgment read as under:
“31. The learned Single Judge, unfortunately, has equated information given regarding
the appellant’s arrest with the grounds of arrest. The observation that the allegation of
non- supply of the grounds of arrest made by the appellant is a bald allegation is
completely uncalled for. All courts, including the High Court, have a duty to uphold
fundamental rights. Once a violation of a fundamental right under Article 22(1) was
alleged, it was the duty of the High Court to go into the said contention and decide in
one way or the other. When a violation of Article 22(1) is alleged with respect to
grounds of arrest, there can be possible two contentions raised: (a) that the arrested
person was not informed of the grounds of arrest, or (b) purported information of
grounds of arrest does not contain any ground of arrest. As far as the first contention
is concerned, the person who is arrested can discharge his burden by simply alleging
that grounds of arrest were not informed to him. If such an allegation is made in the
pleadings, the entire burden is on the arresting agency or the State to satisfy the court
that effective compliance was made with the requirement of Article 22(1). Therefore,
the view taken by the High Court is completely erroneous.”
15. In the 2nd part of the judgment of Vihaan Kumar (supra), it is also been
observed by the Hon’ble Apex Court that “the purpose of inserting Section 50A
of the CrPC, making it obligatory on the person making arrest to inform about
the arrest to the friends, relatives or persons nominated by the arrested person
it to ensure that they would able to take immediate and prompt actions to
Page No.# 8/13
secure the release of the arrested person as permissible under the law. The
arrested person, because of his detention, may not have immediate and easy
access to the legal process for securing his release, which would otherwise be
available to the friends, relatives and such nominated persons by way of
engaging lawyers, briefing them to secure release of the detained person on
bail at the earliest.”
16. The Hon’ble Supreme Court in the case of Directorate of Enforcement
Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No.
8 of the judgment, has observed that ” 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.”
17. Further, it is a settled proposition of law that the High Courts or the
Subordinate Courts should decide the matters on the basis of law as it stands
and unless specifically directed by the Hon’ble Supreme Court to await an
outcome of a reference or review petition as the case may be. In that context
also, a decision of Hon’ble Supreme Court can be relied on which was reported
in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and
Kashmir National Conference), wherein in paragraph No. 35 of the
judgment, it has been held as under:
“35. We are seeing before us judgments and orders by High Courts not deciding cases
Page No.# 9/13on the ground that the leading judgment of this Court on this subject is either referred
to a larger Bench or a review petition relating thereto is pending. We have also come
across examples of High Courts refusing deference to judgments of this Court on the
score that a later Coordinate Bench has doubted its correctness. In this regard, we lay
down the position in law. We make it absolutely clear that the High Courts will proceed
to decide matters on the basis of the law as it stands. It is not open, unless specifically
directed by this Court, to await an outcome of a reference or a review petition, as the
case may be. It is also not open to a High Court to refuse to follow a judgment by
stating that it has been doubted by a later Coordinate Bench. In any case, when faced
with conflicting judgments by Benches of equal strength of this Court, it is the earlier
one which is to be followed by the High Courts, as held by a 5-Judge Bench in National
Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of
course, will do so with careful regard to the facts and circumstances of the case before
it.”
18. So, from the discussion made above, it is seen that as on today, there is
no such distinction made for consideration of bail in cases where the accused
persons were caught red handed or subsequently arrested. But, the Hon’ble
Apex Court in all the cases, as referred above, had expressed the view that non-
furnishing of grounds of arrest to the accused person as well as to his family
members, relatives or friends is in complete violation of mandate of Article 21 &
22(1) of the Constitution of India.
19. 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
Page No.# 10/13custody 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
Constitution 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.”
20. 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.
Page No.# 11/13
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.”
21. 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 of 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 his 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.
22. 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 as the case is still
under investigation. However, considering the fact that the grounds of arrest
were not communicated to the petitioner or mentioned in the Arrest Memo as
Page No.# 12/13
well as in the Notice issued to the present accused/petitioner under Section 47
of BNSS, this Court find it a fit case to extend the privilege of bail to the
accused/petitioner.
23. 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, Sribhumi, the accused/petitioner, namely, Kapil HUssain @ Kabil
Hussain @ Kabil Ahmed, be enlarged on bail, subject to the following
conditions:
(i) that the accused/petitioner shall appear before the Court of learned
Special Judge, Sribhumi, 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 Special Judge, Sribhumi; and
(iv) that the accused/petitioner shall not leave the jurisdiction of the
learned Special Judge, Sribhumi, without prior permission.
Page No.# 13/13
24. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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