Gauhati High Court
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Page No.# 1/8
GAHC010119622025
2025:GAU-AS:8598
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1855/2025
JAMIL HOQUE
S/O ABDUL KALAM
VILL- BORPAM BAGHMARI (BRAHMAPUTRA CHAPORI), P.S. GINGIA,
DIST. BISWANATH, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR S MUKTAR,
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 25-06-2025
Heard Mr. S. Muktar, learned counsel for the petitioner. Also heard Mr. K. K. Das,
learned Additional Public Prosecutor for the State respondent.
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 Biswanath Chariali
P. S. Case No. 53/2025, registered under Sections 21(c)/25/29 of NDPS Act, 1985.
3. It is submitted by Mr. Muktar, learned counsel for the petitioner, that the
accused/petitioner is innocent and that nothing was recovered from his conscious
possession, as alleged in the FIR. The petitioner was arrested on 11.03.2025 in
connection with this case and has been in custody since then. Thus, the Investigating
Officer got sufficient time for the investigation of the case.
4. He further submitted that the grounds of arrest were not mentioned while
furnishing the Arrest Memo and issuing the notice under Section 47 of the BNSS,
which is a mandatory requirement. Furthermore, the notice under Section 48 of the
BNSS was not provided to the family members of the petitioner. The non-compliance
of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution
of India. 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.
5. In support of his submissions, Mr. Muktar, learned counsel for the petitioner, has
cited the following decisions:
(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine
Page No.# 3/8SC 269.
(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8
SCC 254.
6. Mr. Muktar 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 or Notice under Section 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.
7. Mr. Das, the learned Additional Public Prosecutor, submitted that till date the FSL
report has not yet been received and the case is still at the stage of investigation. He
further submitted that sufficient grounds were mentioned at the time of the search
while issuing notice under Section 50 of the NDPS Act and hence, the petitioner was
well aware of the grounds of arrest in connection with this case. He further submitted
that at the time of production of the accused/petitioner before the learned Special
Judge, the offence was explained to him, whereupon he stated that he would engage
an advocate through his family members. Accordingly, he submits that it is not a case
where the petitioner was unaware of the grounds of arrest. Thus, considering the
gravity and nature of the offence, he vehemently raised objection to granting bail to
the accused/petitioner at this stage.
8. He 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
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available in the Case Record, 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, 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.
9. After hearing the submissions made by the learned counsels for both sides, and
upon perusal of the annexures filed along with the petition, particularly the Notice
issued to the present accused/petitioner under Sections 47/ 48 of the BNSS, it is
observed that while issuing the notice under Section 50 of the NDPS Act at the time of
search, it was stated that the accused/petitioner was in possession of narcotic drugs
and psychotropic substances. However, it is noted that there is no specific mention
regarding the crime alleged to have been committed by the accused/petitioner.
Admittedly, while issuing the notice under Sections 47/48 of the BNSS, there is no
mention of the grounds of arrest in the said 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.
10. It is the contention of the petitioner that non-communication of the grounds of
arrest is in violation of 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.
11. The Hon’ble Apex Court in the case of Prabir Purkayastha (supra), as relied by
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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 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
Page No.# 6/8bail. 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.”
12. 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.”
13. 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 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
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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.
14. 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 22.”
15. At the same time, it cannot be denied that the accused/petitioner has been
behind bar since 11.03.2025, and the case is still under the stage of investigation.
16. In view of the entire facts and circumstances as discussed above, viz-a-viz non-
mentioning of grounds of arrest in the Notice issued to the present accused/petitioner
under Section 47 of BNSS and non compliance of Section 48 of BNSS as well as the
considering the view expressed by the Hon’ble Supreme Court in the case laws
referred to hereinabove, this Court find it a fit case to extend the privilege of bail to
the accused/petitioner.
17. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty
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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, Biswanath,
Biswanath Chariali, the accused/petitioner, namely, Jamil Hoque, be enlarged on bail,
subject to the following conditions:
(i) that the petitioner shall make himself available for interrogation by the
Investigating Officer as and when required;
(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 them from disclosing such facts to the Court or to any
police officer;
(iii) that the petitioner shall submit the Aadhar Card and PAN Card before the
learned Special Judge, Biswanath, Biswanath Chariali; and
(iv) that the petitioner shall not leave the jurisdiction of the learned Special
Judge, Biswanath, Biswanath Chariali, without prior permission.
18. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant