Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 6 May, 2025
Page No.# 1/9
GAHC010086502025
2025:GAU-AS:5620
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1269/2025
MD RASHIDUL ISLAM
SON OF MD. SIDDIK ALI
R/O VILL-THEPKAI PAHARTOLI, P.S. BHAGUAN,
DIST. GOALPARA, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. N J DUTTA, M RAHMAN,MR A BASUMATARY,MR. M M
ZAMAN,MR N AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 06.05.2025
Heard Mr. N. J. Dutta, learned consel for the petitioner. Also heard Mr. D.
P. Goswami, learned Additional Public Prosecutor for the State respondent.
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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 with
Dillai P.S. Case No. 49/2024, under Sections 21(c)/25/29 of the NDPS Act, 1985.
3. Case Diary has been received and I have perused the same.
4. It is submitted by Mr. Goswami, learned Additional Public Prosecutor, that
as per his information, the FSL Report has already been collected by the I.O.
and one prayer for extension was also made before the learned Special Judge,
which was accordingly allowed vide order dated 23.04.2025.
5. In that context, Mr. Dutta, learned counsel for the petitioner, submitted
that the present accused/petitioner is innocent and nothing has been recovered
from his conscious possession. Though, as per F.I.R., it is alleged that the
contraband was recovered from the truck wherein the present petitioner was
the driver, however he was not aware about any contraband which was loaded
in the said truck. Further he submitted that in pursuant to the order of this
Court, the State has already filed their affidavit wherein also, it is specifically
mentioned that though the Notices under Sections 47 & 48 of BNSS was served
to the present petitioner and his relatives, but no grounds of arrest were
mentioned in the said Notices.
6. The relevant paragraph of the said affidavit filed by the State is quoted
hereinbelow for ready reference:
“That the notices issued under Section 47 and 48 of BNSS contains
Page No.# 3/9the sections under which the accused was arrested but the grounds for
such arrest were not mentioned in the aforesaid notices.”
7. Accordingly, Mr. Dutta submitted that while arresting the present
accused/petitioner, the grounds of arrest were not communicated to him in the
Arrest Memo and the Notice under Sections 47 & 48 of BNSS, which is
mandatorily required and non-compliance of the same is in violation of Articles
21 & 22(1) of the Constitution of India. He further submitted that the
accused/petitioner was arrested on 05.11.2024 and was remanded for judicial
custody on 06.11.2024, but due to non-mentioning of grounds of arrest in the
Arrest Memo and the Notice under Section Sections 47 & 48 of BNSS, the arrest
and the remand itself is illegal. He accordingly submitted that all the full
particulars of the offence, which is alleged to have been committed by the
accused, should be informed to him at the time of his arrest and otherwise it
would be against the mandate of the Constitution of India as well as the
statutory provisions which would vitiate the arrest itself.
8. In this context also, Mr. Dutta, learned counsel for the petitioner, cited the
following decisions:
(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.
9. Mr. Dutta also submitted that though in the case of commercial quantity,
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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 Notices under Sections 47 & 48
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.
10. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard
that the present petitioner was one of the occupants of the truck wherefrom the
recovery was made. He further submitted that the alleged contraband was
recovered from the conscious possession of the present accused/petitioner. He
also submitted that there may not be any written communication for grounds of
arrest in the Arrest Memo and the Notices under Sections 47 & 48 of BNSS, but
from the materials available in the case record, it is very much evident that the
petitioner was well aware about the allegation brought against him and in the
forwarding report, the same has already been mentioned and hence, he raised
objection in granting bail to the accused/petitioner.
11. Further Mr. Goswami submitted that the case is of commercial in nature
and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition
has to be satisfied that the accused is not guilty of the offence and there has to
be a belief that the accused will not repeat or commit the same offence while on
bail. But, from the materials available in the Case Record and Case Diary, it
cannot be said that the present petitioner is innocent, he has not committed
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such offence nor there is any probability of committing similar kind of offence if
he is released on bail. Thus, he raised vehement objection and submitted that
considering the nature and gravity of the offence, it is not at all a fit case to
enlarge the accused/petitioner on bail at this stage.
12. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the annexures filed along with
the petition, more particularly, the Arrest Memo and the Notices issued to the
present accused/ petitioner and his relatives under Sections 47 & 48 of BNSS. It
is accordingly seen that while issuing the said Arrest Memo and Notices, though
the name and the address of the accused/petitioner along with the case number
as well as the Sections under which he was arrested are being mentioned, but
admittedly there is no mention about the grounds of arrest in the same. Thus, it
is the admitted position that the grounds of arrest were not intimated to the
accused/petitioner or to his family members at the time of his arrest which is a
statutory right of an accused and it is also a constitutional mandate that the
person should be intimated regarding the grounds of arrest under which he was
taken into custody of police.
13. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Sections 47 & 48 of BNSS rendering the arrest
and subsequent remand of the accused/petitioner invalid. The
accused/petitioner has the fundamental and statutory right to be informed
about the grounds of arrest in writing and copy of such written ground of arrest
have to be furnished to the arrested person as a matter of course and without
any explanation. Non-supply of written grounds of arrest to the arrested
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accused/petitioner would vitiate the arrest.
14. 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
custody 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,
Page No.# 7/9the ‘grounds of arrest’ would invariably be personal to the accused and cannot be
equated with the ‘reasons of arrest’ which are general in nature.”
15. 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.
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. 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 Notices issued
to the present accused/petitioner and his relatives under Sections 47 & 48 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 Sections 47 & 48 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,
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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.
17. 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
well as in the Notices issued to the present accused/petitioner and his relatives
under Sections 47 & 48 of BNSS, this Court find it a fit case to extend the
privilege of bail to the accused/petitioner.
18. 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, NDPS, Karbi Anglong, Diphu, the accused/petitioner, namely, Md.
Rashidul Islam, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, NDPS, Karbi Anglong, Diphu, on each and every date to be
fixed by the Court;
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(ii) that the 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 petitioner shall submit his Aadhar Card and PAN Card
before the learned Special Judge, NDPS, Karbi Anglong, Diphu; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, NDPS, Karbi Anglong, Diphu, without prior
permission.
19. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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