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Gauhati High Court
Page No.# 1/8 vs The State Of Assam on 25 July, 2025
Page No.# 1/8
GAHC010094372025
2025:GAU-AS:9600
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1447/2025
MD. FAZLUL HOQUE
C/O- MONSER ALI
VILL-HAZARIGAON
P.O. -AMCO ROAD,
DIST. DHUBRI, PIN-783301
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MS. T SOM, MS. S. SUT,MS. B. DAS,MS. U HAZARIKA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 25.07.2025
1. Heard Ms. T Som, learned counsel for the petitioner. Also heard Mr. P.S
Lahkar, learned Additional Public Prosecutor for the State of Assam.
2. This application under Section 483 of BNSS, 2023 has been filed by the
petitioner namely, Md. Fazlul Hoque, who has been detained behind bars since
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04.02.2024 (for more than 1 year 5 months) in connection with Special Case No.
447/2024 arising out of Dhubri P.S Case No. 34/2024, under Section 22©/29 of the
NDPS Act, 1985.
3. The gist of accusation in this case is that on 04.02.2024 one Kapil Chandra
Das had lodged an FIR before the Officer-In-Charge of Dhubri Police Station, inter alia,
alleging that on receipt of an information through reliable sources that large number
of narcotic substances have been kept concealed in the house of one Nayan Chandra
Nath at Ward No. 15 of Dhubri, a search team was constituted and a search operation
was conducted. During the search operation, 30 bottles of RC-Kuff Plus syrup
containing codaine and 240 nos. of Pyeevon Spas Plus capsule containing Tramadol,
140 nos. of Nitrazepam IP-10 mg (Nitcor-10) were recovered from the house of said
Nayan Chandra Nath. At the time of recovery of the aforesaid contraband, the present
petitioner was also found at the place of recovery.
4. Ms. T Som, learned counsel for the petitioner has submitted that the
petitioner has been languishing behind bars for more than 1 year 5 months and the
trial has not progressed much. She submits that out of 7(seven) listed prosecution
witnesses only 3(three) have been examined till date. The learned counsel for the
petitioner has also submitted that the petitioner is an aged person of 72 years which
may also be taken into consideration while considering the prayer for bail.
5. She further submits that the petitioner has mainly approached this Court
seeking bail on the ground of violation of his fundamental rights guaranteed to him
under Article 22(1) of the Constitution of India as, at the time of his arrest, the notice
which was served under Section 50 of the Cr.P.C, 1973 did not contain any ground of
arrest. She submits that the notice which was served on the petitioner at the time of
his arrest only contain the information regarding the Police Station case number
Dhubri P.S Case No. 34/2024, as well as the penal provision involved in the case i.e.
offence under Section 22(C)/29 of the NDPS Act, 1985.
6. She submits that apart from the aforesaid facts, no ground or no basic facts
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which necessitated the arrest of the petitioner, was mentioned in the said notice. She
has relied on the ruling of the Apex Court in the case of Vihaan Kumar v. State of
Haryana & Another reported in 2025 SCC Online SC 269, wherein, the Apex Court
has observed that at the time of arrest of an arrestee, it is the mandate of Article
22(1) of the Constitution of India to furnish grounds of arrest, in writing, to such an
arrestee. If there is a violation of this mandate, it would render the arrest itself illegal,
and on that ground the petitioner is entitled to get bail.
7. Ms. T Som, learned counsel for the petitioner has also relied on the
judgment of the Apex Court in the case of “Prabir Purkayastha vs. State (NCT of
Delhi)” reported in (2024) 8 SCC 254, wherein, the Apex Court also observed that the
grounds of arrest to be furnished to the petitioner at the time of his arrest is a
mandatory constitutional requirement and any deviation from the same would vitiate
the arrest. She, therefore, submits that as in the instant case, the notice which was
served to the petitioner does not contain any ground of arrest, the petitioner is
entitled to get bail in this case on that count only.
8. On the other hand, Mr. P.S Lahkar, the learned Additional Public Prosecutor
for the State of Assam has vehemently opposed the grant of bail to the petitioner on
the ground that the quantity of contraband recovered in this case is of commercial
quantity, therefore, the embargo of Section 37 of the NDPS Act, 1985, is applicable in
this case. He also submits that in this case there is no violation of the constitutional
mandate of Article 22(1) of the Constitution of India. Referring to the judgment of the
Apex Court in the case of Vihaan Kumar vs. State of Haryana & Another (Supra) he
submits that the purpose of the inclusion of provision of furnishing grounds of arrest
to an arrestee at the time of his arrest, in Article 22(1) of the Constitution of India, is
to enable him to engage a counsel so that he can properly defend himself. Once the
said purpose is achieved it cannot be said that there has been any violation of the
constitutional mandate of Article 22(1) of the Constitution of India.
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9. The learned Additional Public Prosecutor has also submitted that in this
case, notice under Section 50, Cr.P.C 1973, has been served on the petitioner which
the petitioner had also acknowledge by putting his signatures thereon, and as the
service of Section 50 notice is not disputed, there is no violation of statutory provision
of Section 50 of the BNSS, 2023 as well as constitutional mandate of Article 22(1) of
Constitution of India. He also submits that in this case the petitioner was arrested red-
handed at the time recovery of the seized contraband from him. He also submits that
in a case, where the petitioner is caught red-handed with the seized contraband, there
is no requirement to furnish any separate grounds of arrest as the reason for arrest is
well-known to him and service of notice under Section 50 of the Cr.P.C, 1973 in the
manner as it has been furnished in this case would be sufficient compliance of the
constitutional requirement under Article 22(1) of the Constitution of India.
10. Mr. P.S Lahkar, the learned Additional Public Prosecutor for the State of
Assam has also submitted that as the offence under NDPS Act, 1985 are serious
offences which have a negative impact on the society, the rights of the individual have
to be balanced with the rights of the society and the Court should not be lenient in
granting bail.
11. I have considered the submissions made by the learned counsel for
both sides and have gone through the scanned copies of the records of Special Case
No. 447/2024.
12. On perusal of the copy of notice under Section 50 of Cr.P.C, 1973 which
was served on the petitioner of this case, it appears that it contains the reference of
the Dhubri P.S Case No. 34/2024 as well as the penal provision under Section
22(C)/29 of the NDPS Act. It also contains information that the petitioner is arrested in
connection with the above referred case which is non-bailable in nature. It also
contains information that the petitioner, after his arrest, would be forwarded to the
Court and he can move a bail application before this Court.
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13. Apparently, apart from the Police Station Case number and the penal
provisions involved in the case, there is no other indication as to what necessitated the
arrest of the petitioner in this case. Bare perusal of the notice would reveal that no
basic facts which necessitated the arrest of the petitioner has been mentioned in the
said notice. This notice can very well be regarded only as an intimation to the
petitioner that he has been arrested in connection with Dhubri P.S Case No. 34/2024
in connection with offence under Section 22(C)/29 of the NDPS Act, 1985. Nothing
apart from said facts can be discerned from the said notice as to how the petitioner is
involved in the aforesaid case or what is his role in the alleged offence could not be
gathered from the information which is there in the said notice.
14. The Apex Court in the case of Vihaan Kumar vs. State of Haryana
& Another (Supra) has observed that :
“26.1. The requirement of informing a person arrested of grounds of arrest is a
mandatory requirement of Article 22(1);
26.2. The information of the grounds of arrest must be provided to the arrested
person in such a manner that sufficient knowledge of the basic facts constituting the
grounds is imparted and communicated to the arrested person effectively in the
language which he understands. The mode and method of communication must be
such that the object of the constitutional safeguard is achieved;
26.3. When arrested accused alleges non-compliance with the requirements of
Article 22(1), the burden will always be on the investigating officer/agency to prove
compliance with the requirements of Article 22(1);
26.4. 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 charge-sheet will not validate a breach of
constitutional mandate under Article 22(1);
26.5. When an arrested person is produced before a Judicial Magistrate for
remand, it is the duty of the Magistrate to ascertain whether compliance with Article
22(1) and other mandatory safeguards has been made; and
26.6. When a violation of Article 22(1) is established, it is the duty of the court
to forthwith order the release of the accused. That will be a ground to grant bail even
if statutory restrictions on the grant of bail exist. The statutory restrictions do not
affect the power of the court to grant bail when the violation of Articles 21 and 22 of
Page No.# 6/8the Constitution is established”.
15. From the above observations of the Apex Court, it appears that the
information regarding grounds of arrest to an arrestee must be provided to him in a
manner so that sufficient knowledge of the basic facts constituting the grounds of his
arrest are communicated to an arrested person. It also appears from the above
observations that any violation of the aforesaid requirement would render the arrest of
the arrestee illegal and on that ground an arrestee may be granted bail.
16. The submission of Mr. P.S Lahkar, the learned Additional Public
Prosecutor for the State of Assam that as notice under Section 50 of Cr.P.C, 1973 has
already been furnished in this case, hence, there is no violation of the statutory
provision of Section 50 of Cr.P.C, 1973 as well as Article 22(1) of Constitution of India
cannot be accepted as unless such a notice contains basic facts which necessitated
the arrest of the petitioner, it may not even be regarded as a notice under Section 50
of the Cr.P.C, 1973 though it purports to be so.
17. Regarding the submission that when a person is arrested red-handed
with the contraband, he is aware about the facts for which he has been arrested and
therefore, there is no necessity of furnishing any grounds of arrest separately, is also
not acceptable as such an interpretation would tantamount to diluting the
constitutional requirement of furnishing grounds of arrest in writing to the petitioner
as provided under Article Article 22(1) of Constitution of India and clarified by the
Apex Court in the case of “Vihaan Kumar vs. State of Haryana & Another
(Supra)” and “Prabir Purkayastha vs. & NCT Delhi“.
18. Though, in case, when accusation of commission of offence under
Section NDPS Act, 1985 is made, societal interests as well as right of an individual are
to be balanced, however, in the garb of protecting societal interests, the police does
not get a license to violate mandatory constitutional norms with impunity. Any attempt
to encroach upon the fundamental rights of an individual which are protected by the
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Constitution of India has to be looked at very seriously.
19. This Court, therefore, does not agree with the submissions made by Mr.
P.S Lahkar, the learned Additional Public Prosecutor for the State of Assam that in
cases where the accused is caught red-handed, there is no requirement of furnishing
detail written grounds of arrest apart from furnishing notice under Section 50 of the
Cr.P.C, 1973 in the manner as has been furnished in the instant case. As already
discussed earlier, such an interpretation would amount to diluting the constitutional
mandate provided under Article 22(1) of Constitution of India.
20. In view of the discussions made hereinabove, this Court is of the
considered opinion that as in the instant case also by serving an bald notice to the
petitioner purporting it to be a notice under Section 50 of the Cr.P.C, 1973, the
arresting authority has violated the fundamental rights of the petitioner which are
guaranteed to him under Article 22(1) of the Constitution of India. Hence, on that
count itself, the petitioner is entitled to get bail.
21. For the reasons mentioned in the foregoing paragraphs and the
discussions made hereinabove, the above named petitioner is allowed to go on bail of
Rs 50,000/- with 1(one) surety of like amount to the satisfaction of the Ld. Special
Judge, Dhubri, Assam with the following conditions :
(I) That the petitioner shall cooperate in the trial of Special Case
No. 447/2024, which is pending in the Court of Ld. Special Judge, Dhubri, Assam;
(ii) That the petitioner shall appear before the Trial Court as and when
so required by the Trial Court;
(iii) That the petitioner shall not directly or indirectly make any
inducement, threat, or promise to any person who may be acquainted with the facts
of the case, so as to dissuade such person from disclosing such facts before the Trial
Court in the trial pending against the present petitioners;
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(iv) That the petitioner shall provide his contact details including
photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and
other contact details before the Trial Court.
(v) That the petitioner shall not leave the jurisdiction of the Trial Court
without prior permission of the Trial Court and when such leave is granted by the Trial
Court, the petitioner shall submit his leave address and contact details during such
leave before the Trial Court.
(vi) That the petitioner shall not commit any offence while on bail.
22. With the above observation, this bail application is accordingly, disposed
of.
JUDGE
Comparing Assistant
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