Gauhati High Court
Page No.# 1/12 vs The Union Of India on 9 May, 2025
Page No.# 1/12
GAHC010080942025
2025:GAU-AS:5770
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1217/2025
KASHMIR SINGH A DEAOO
S/O- LATE AJIT SINGH DEAOO,
R/O- M/502, MARUTI HEIGHTS, OPP SATYAM EXOTICA, DIMAND RD,
CHANNI, PO AND PS- CHHANI, DIST- VADODARA (GUJARAT)- 391740
VERSUS
THE UNION OF INDIA
REP BY SC, NCB
Advocate for the Petitioner : MS. S K NARGIS, A SAHA,MR F H LASKAR (2),MS S BEGUM
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 09.05.2025
Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Ms.
N. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned
Standing Counsel, NCB for the respondent/Union of India.
Page No.# 2/12
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with NDPS
Case No. 03/2024, arising out of NCB Crime No. 14/2023, under Section
8(c)/20(b)(ii)(C)/29 of NDPS Act, pending before the Court of learned Special
Judge, Rangia.
3. Scanned copy of the case record has already been received and I have
perused the same.
4. It is submitted by Ms. Nargis, 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 the conscious possession of the
present accused/petitioner. He is the driver cum owner of the vehicle and was
not aware about any loading of the contraband in his vehicle. However, he got
arrested in connection with this case on 13.08.2023 and for last 1 (one) year, 8
(eight) months & 19 (nineteen) days, he has been in custody. He further
submitted that the charge-sheet of the case was filed on 05.02.2024 and the
charge was also framed on 10.04.2024, but till date, out of 8 (eight) numbers of
listed witnesses, no witnesses could be examined by the learned Trial Court.
She, accordingly, submitted that there is no probability of completion of trial
within near future as lots of witnesses are yet to be examined by the
prosecution and therefore she submitted that considering the period of long
incarceration, the petitioner may be enlarged on bail. He is a permanent
resident of his addressed locality and will regularly appear before the Court to
contest the case as and when the date is fixed by the Court.
Page No.# 3/12
5. In that context, Ms. Nargis, learned counsel for the petitioner, also relied
on the following decisions in support of his case:
(i) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order
dated 01.08.2022 in SLP Crl. No. 4173/2022]
(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi) [2023 SCC
OnLine SC 352]
6. Ms. Nargis further submitted that the grounds of arrest were not
communicated to the present petitioner in the Arrest Memo as well as in the
Notice under Section 50 Cr.P.C., which is mandatorily required and non-
compliance of the same is in violation of Articles 21 & 22(1) of the Constitution
of India. She further submitted that the accused/petitioner was arrested on
13.08.2023 and was remanded for judicial custody on 14.08.2024, but due to
non-mentioning of grounds of arrest in the Arrest Memo as well as in the Notice
under Section 50 Cr.P.C., the arrest and the remand itself is illegal. She
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.
7. In this context also, Ms. Nargis, learned counsel for the petitioner, cited
Page No.# 4/12
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.
8. Ms. Nargis further submitted that one Memorandum of Arrest was also
furnished to the present petitioner and some grounds of arrest were also
brought in the petition. But that cannot be considered as proper communication
of ground of arrest to the present petitioner wherein his family members were
also not intimated about the grounds of arrest. She further emphasized on
paragraph No. 26 of the case of Vihaan Kumar (supra) and submitted that
information about the arrest and the grounds of arrest are completely different.
9. Ms. Nargis 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 as well as in the Notice under Section 50
Cr.P.C.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.
Page No.# 5/12
10. Ms. Deka, learned counsel appearing on behalf of the, learned Standing
Counsel for the NCB, submitted that a huge quantity of contraband was
recovered from the possession of the accused/petitioner. He further submitted
that in the voluntary statement made by the accused/petitioner under Section
67 of the NDPS Act, the accused admitted his involvement in trafficking the said
contraband. The accused described in detail how he was associated with the
alleged offence, and it is also an admitted position that the entire contraband
was recovered from his possession. Accordingly, she submitted that the recovery
of the contraband was made from the conscious possession of the
accused/petitioner, and therefore, she strongly opposed the grant of bail at this
stage.
11. In this context, Ms. Deka relied on the decision of the Hon’ble Apex Court
in Union of India through NCB, Lucknow vs. Md. Nawaz Khan [Criminal
Appeal No. 1043/2021, arising out of SLP (Crl) No. 1771/2021],
wherein it was observed that “with regard to the grant of bail for offences under
the NDPS Act, in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 this
Court observed that bail may be cancelled if it has been granted without
adhering to the parameters under Section 37 of the NDPS Act. Further, in Union
of India v. Prateek Shukla, (2021) 5 SCC 430, one of us (Justice DY
Chandrachud), speaking for a two-judge Bench, noted that non-application of
mind to the rival submissions and the seriousness of the allegations involving an
offence under the NDPS Act by the High Court are grounds for cancellation of
bail.”
Page No.# 6/12
12. She further 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 such
offence nor there is any probability of committing similar kind of offence if he is
released on bail. Thus, she 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/petitioners on bail at this stage.
13. She further relied on a decision of Hon’ble Apex Court passed in Criminal
Appeal Nos. 1001-1002 of 2022, arising out of Special Leave to
Appeal(Crl.) No. 6128-29 of 2021 (Narcotics Control Bureau Vs. Mohit
Aggarwal), wherein it has been held that if the Court is not satisfied that the
accused is not guilty of the offence alleged against him, the Court should not
allow the accused to go on bail. She further gives emphasized on paragraph No.
18 of the said judgment, which reads as under:
“18. In our opinion the narrow parameters of bail available under Section 37 of the
Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe
to conclude that the respondent has successfully demonstrated that there are
reasonable grounds to believe Criminal Appeal Nos. of 2022 @ Petitions for Special
Leave to Appeal (Criminal) No. 6128-6129 of 2021 that he is not guilty of the offence
alleged against him, for him to have been admitted to bail. The lengths of the period
of his custody or the fact that the charge-sheet has been filed and the trial has
commenced are by themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37 of the NDPS Act.”
14. She further submitted that the Memorandum of Arrest contains detailed
Page No.# 7/12
information regarding the grounds of arrest and the offence committed by the
accused/petitioner. Therefore, according to her, there was full compliance with
the legal provisions while furnishing the Memorandum of Arrest. She also
submitted that Section 50 of the Cr.P.C. does not specifically require that the
grounds of arrest be communicated in detailed written form. She argued that
the Notice issued to the accused/ petitioner under Section 50 of the Cr.P.C.
reflects that proper intimation regarding the arrest was indeed given.
Accordingly, she raised objection to the bail application and submitted that this
is not a fit case for granting bail merely on the grounds of the prolonged period
of incarceration or the alleged non-communication of the grounds of arrest.
15. 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 Notice issued to the present
accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while
issuing the said Notice, 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 in the Notice. 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.
16. It is the contention of the petitioner that non-communication of the
Page No.# 8/12
grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to
Section 47 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 accused/ petitioner would vitiate the arrest even if the
case has been charge-sheeted.
17. It is evident from the Memorandum of Arrest issued to the
accused/petitioner that it mentions the recovery of the contraband and states
that there is a prima facie case against the accused/petitioner. However, it is a
fact that there is no specific mention or detailed description of the alleged
offence committed by the accused/petitioner. It is also an admitted position that
Section 8(c) of the NDPS Act encompasses various types of offences, but the
Memorandum fails to specify which particular aspect or sub-offence under
Section 8(c) is being invoked in the present case to attract the application of
Sections 20(b)(ii)(C) and 29 of the Act.
18. In the case of Vihaan Kumar (supra), the Hon’ble Apex Court clearly held
that “the requirement of informing the person arrested on the grounds of arrest
is not merely a formality, but a mandatory constitutional requirement under
Article 22 of the Constitution.”
19. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court
has held has under:
Page No.# 9/12
“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.”
20. 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 and 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
Page No.# 10/12the 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.”
21. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest in the Notice issued to the present
accused/petitioner under Section 50 of Cr.P.C. 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 50 of
Cr.P.C., 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 her 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.
Page No.# 11/12
22. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar
(supra) has also held that even after filing of the charge-sheet, the arrest and
the detention will be considered as unconstitutional being violative of Articles 21
& 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph
No. 16 of the said judgment has held as under:
“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 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.”
23. 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 charge
has already been framed and the trial is about to commence. 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 Notice issued to
the present accused/petitioner under Section 50 Cr.P.C., this Court find it a fit
case to extend the privilege of bail to the accused/petitioner.
24. 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
Page No.# 12/12
one surety has to be a government servant, to the satisfaction of the learned
Special Judge, Rangia, the accused/petitioner, namely, Kashmir Singh A Deaoo,
be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Rangia, on each and every date to be fixed by the Court;
(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, Rangia; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Rangia, without prior permission.
25. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
[ad_1]
Source link