Gauhati High Court
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GAHC010101482025
2025:GAU-AS:8873
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1585/2025
MD HAMID ALI
S/O LATE RUPCHAND ALI
R/O TAMULDI, P.S.BOKO
DIST. KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. N J DUTTA, RIJUANA BEGUM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 27-06-2025
Heard Mr. N.J. Dutta, learned counsel for the petitioner Md. Hamid Ali,
who has filed this application under Section 483 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS for short) with prayer for bail as he is behind bars since
26.03.2024 in connection with NDPS Case No. 381/2024 pending in the the
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Court of learned Additional Sessions Judge No. 5, Kamrup (M) arising out of STF
Police Station Case No. 07/2024 under Section 21(c)/25/29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. It is submitted on behalf of the petitioner that the grounds of arrest have
not been properly communicated to the petitioner and his right to life has been
infringed as he was not aware of the grounds of arrest.
3. On the contrary, learned Additional Public Prosecutor Mr. P.S. Laskar has
raised serious objection stating that it is not plausible that the petitioner could
not follow the grounds of arrest. The grounds of arrest were communicated to
the petitioner but the entire history has not been mentioned. Notice under
Section 47 of BNSS, 2023 clearly indicates as follows:-
“1) There is found sufficient evidences against him, regarding his involvement into the case.
2) The previously arrested accd. persons also disclosed his name as a prime accd. persons of
the case, who regularly supplies drugs/ Heroin to them for sale.
3) On the basis of their statements, 07/10/2024, accd. Hamid Alt has been apprehended at
Boko PS jurisdiction and on being led and shown by him, during search in his rented house, (i)
One soap box containing 11 grams ( without soap box) suspected Heroin (ii) 220 nos of vials
containing 290 grams suspected Heroin, (Total 301 grams) and (iii) 21 nos empty vials have
been recovered and seized from his possession.
4) Under the above facts and circumstances he has been arrested and being forwarded to
Hon’ble Court.”
4. However, learned counsel for the petitioner has submitted that the
grounds of arrest have not been communicated to the petitioner’s relative as
mandated by the decision of the Hon’ble Supreme Court in Vihaan Kumar
Versus State Haryana & Anr. reported in (2025) AIR (SC) 1388 wherein it has
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been held by the assenting decision that :-
“2. The issue on the requirement of communication of grounds of arrest to the person arrested,
as mandated under Article 22(1) of the Constitution of India, which has also been incorporated
in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly
reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the
person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be
meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha
(supra). The said constitutional mandate has been incorporated in the statute under Section 50
of the CrPC (Section 47 of BNSS). It may also be noted that the aforesaid provision of
requirement for communicating the grounds of arrest, to be purposeful, is also required to be
communicated to the friends, relatives or such other persons of the accused as may be disclosed
or nominated by the arrested person for the purpose of giving such information as provided
under Section 50A of the CrPC. As may be noted, this is in the addition of the requirement as
provided under Section 50(1) of the CrPC.
3. 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, is to ensure that they would able to take immediate and prompt actions to
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. Therefore, the purpose of communicating the grounds of arrest to
the detenue, and in addition to his relatives as mentioned above is not merely a formality but to
enable the detained person to know the reasons for his arrest but also to provide the necessary
opportunity to him through his relatives, friends or nominated persons to secure his release at
the earliest possible opportunity for actualising the fundamental right to liberty and life as
guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the
grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives
or such other person as may be disclosed or nominated by the arrested person, so as to make
the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such
arrest may be rendered illegal.”
5. I have scrutinized the Trial Court Records, which clearly reveals that notice
under Section 48 of BNSS, 2023 has been issued to the wife of the petitioner.
She was informed about the grounds of arrest in writing and she was well
informed that the petitioner was booked under Section 21(c)/25/29 of the NDPS
Act and she has affixed her signature while receiving the grounds of arrest.
6. Vihaan Kumar’s case deals with Article 22(1) of the Constitution of India
and it has been held that :-
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“21. d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused
guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty
guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of
Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of
remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and
trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate
under Article 22(1).”
7. It has been held by the Hon’ble Supreme Court in Vihaan Kumar (supra)
that the purpose of inserting Section 50A of the CrPC (which is pari materia
Section 48 of BNSS) is to inform about the arrest to the friends, relatives of the
accused and to ensure that they would take immediate and prompt action to
secure the release of the accused as he may not have immediate and easy
access to the legal process for securing his release owing to his detention. It
was observed that therefore, the purpose of communicating the grounds of
arrest to the detenue, and in addition to his relatives, is to enable the detained
person to know the reasons for his arrest but also to provide necessary
opportunity to him through his relatives to secure his release at the earliest
possible opportunity for actualizing the fundamental right to liberty and life as
guaranteed under Article 21 of the Constitution. Thus, the requirement of
communicating the grounds of arrest in writing is not only to the arrested
person, but also to the friends, relatives.
8. In the instant case, the grounds of arrest have been communicated to the
petitioner. The grounds of arrest have been conveyed to the petitioner’s wife but
not as elaborately as it was communicated to the petitioner.
9. It has been held by the decision of the Hon’ble Supreme Court in
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Kasireddy Upender Reddy Versus State of Andhra Pradesh and Ors. in Criminal
Appeal No. 2808 of 2025 arising out of SLP (Crl.) No. 7746 of 2025 that :-
“27. The object underlying the provision that the grounds of arrest should be communicated to
the person arrested has been very succinctly explained in Vihaan Kumar (supra). On learning
about the grounds for arrest, the person concerned will be in a position to make an application
before the appropriate Court for bail, or move the High Court for a writ of habeas corpus.
Further, the information will enable the arrested person to prepare his defence in time for the
purposes of his trial. For these reasons, it has been provided by the Constitution that, the
ground for the arrest must be communicated to the person arrested as soon as possible.
28. For the purposes of Clause (1) of Article 22, it is not necessary for the authorities to furnish
full details of the offence. However, the information should be sufficient to enable the arrested
person to understand why he has been arrested. The grounds to be communicated to the
arrested person should be somewhat similar to the charge framed by the Court for the trial of a
case.”
10. In the instant case, it is thereby concluded that the requirement of
paragraph 21(d) as laid down in Vihaan Kumar (supra) is said to have been
fulfilled. This is a case where the petitioner is charged for transporting 1.238 kgs
of heroin. The offence is serious in nature.
11. The forwarding report itself unfolds that on 28.04.2024 at 2.00 pm, a
vehicle was intercepted by a team on a tip off, and two persons were found
inside the vehicle. One maroon coloured bag was recovered from the vehicle
containing heroin weighing 1 kg 238 grams. Two persons who were arrested,
disclosed the petitioner’s name as the drug peddler, regularly supplying drugs
and heroin to them for sale. Thus, this is a case where provisions of Section 37
of the NDPS Act, acts as an embargo in granting bail to the offenders of such
heinous offence.
12. At this juncture, I am not inclined to grant bail to the petitioner although it
is submitted that not a single witness has been examined. Petition stands
rejected at this stage with a liberty to the petitioner to file a fresh bail petition
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subsequently, if trial is procrastinated by the Court or by the State.
13. In terms of the above observation, this Bail Application stands disposed of.
JUDGE
Comparing Assistant