Soleman Mollah vs The State Of Assam on 7 August, 2025

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Gauhati High Court

Soleman Mollah vs The State Of Assam on 7 August, 2025

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GAHC010160462025




                                THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Bail Appln./2369/2025

             SOLEMAN MOLLAH
             S/O TURANI MOLLAH
             R/O VILL- NAYAPARA PART-II,
             P.S. MATIA
             DIST. GOALPARA, ASSAM

             VERSUS

             THE STATE OF ASSAM
             REP BY THE PP, ASSAM



Advocate for the Petitioner     : MR. S H RAHMAN, MR. M S MONDAL

Advocate for the Respondent : PP, ASSAM,




                                     BEFORE
                   HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                              ORDER

Date : 07.08.2025

1. Heard Mr. S.H. Rahman, the learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, the
learned Additional Public Prosecutor, Assam, appearing for the State respondent.

2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has
been filed by the petitioner, namely, Soleman Mollah, who has been arrested on 20.02.2025 in
connection with Mornoi P.S. Case No. 17/2025 under Section 123 of BNS, 2023 read with Sections
22(C)
/ 29 of the N.D.P.S. Act, 1985.

3. The gist of accusation in this case is that on 20.02.2025, one Sri Sarat Chandra Nath, S.I., had
lodged an FIR before the Officer-In-Charge of Mornoi Police Station, inter alia, alleging that on receipt
of information from a reliable source regarding transportation of suspected drugs in the Maruti Swift
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Dzire bearing Registration No. AS-01-FB-5499, a police team was constituted at a nacka checking at
Harimura Borjull. During the Naka checking, the aforesaid vehicle was intercepted and three accused
persons (including the present petitioner) were apprehended therefrom. During search of the said
vehicle, 706 Nos. of bottles of Cough Syrup containing Codeine Phosphorous were recovered.

4. The learned counsel for the petitioner has submitted that the petitioner is seeking bail in this case
mainly on the ground that no grounds of arrest were communicated to him at the time of his arrest or to
his family members when he was arrested. The learned counsel for the petitioner submits that though
notice under Section 47 was served upon the petitioner, however, it did not contain any ground for his
arrest or the basic facts which necessitated the arrest of the petitioner. He submits that the fundamental
rights of the petitioner guaranteed under Article 22(1) of the Constitution of India has been violated in
this case as no ground of arrest was communicated to him as clarified by the Apex Court in the case of
Vihaan Kumar Vs. State of Haryana and anr., reported in (2025) 5 SCC 799.

5. The learned counsel for the petitioner submits that in the aforesaid case the Apex Court has
observed that when there is violation of the Constitutional requirement of furnishing the ground of
arrest to an arrestee at the time of his arrest, such arrest itself become illegal and on that ground, he
may be allowed to go on bail.

6. On the other hand Mr. P.S. Lahkar, learned Public Prosecutor has produced the case diary of
Mornoi P.S. Case No. 17/2025 and has vehemently opposed the grant of bail to the petitioner on the
ground that the quantity of contraband seized in this case is of commercial quantity and therefore
embargo 37 of the NDPS Act is applicable in this case. He also relied upon the judgment of the Apex
Court in the case of Kasireddy Upenderreddy Vs. State of Andhra Pradesh and others reported in
(2025) INSC 768, has submitted the if the petitioner is told at the time of his arrest as to why he has
been arrested it would be sufficient compliance of the mandate of Article 22(1) of the Constitution of
India. He submits that in view of the aforesaid judgment of the Apex court there is no requirement of
furnishing the ground of arrest, in writing, if the petitioner has been otherwise told about the said
grounds.

7. The learned Addl. Public Prosecutor also submits that in the case diary, the Investigating Officer
has made an endorsement to that effect that the petitioner was communicated with the ground of arrest
at the time of his arrest. He also submits that all the grounds for which the petitioner was arrested has
been communicated as it would be clear from the perusal of the said endorsement in the case diary. He,
therefore, prays for rejecting the bail of the petitioner. The learned Addl. P.P. has also submits that in
the case of Kasireddy Upenderreddy (Supra), the Apex Court has held that for the purposes of
complying with the mandate of Article 22(1), it is not necessary to furnish full details of the offence
alleged against the arrestee, it would be sufficient compliance if sufficient information has been given
to him regarding the grounds of arrest.

8. I have considered the submissions made by the learned counsel for both the parties and have gone
through the case record which is produced by the learned Addl. Public Prosecutor.

9. In this case, the petitioner is mainly seeking bail on the ground that no grounds of arrest were
mentioned in the notice when he was arrested. On perusal of the said notice, it appears that apart from
Police Station Case Number, i.e. Mornoi P.S. Case No. 17/2025 as well as the penal provisions i.e.
under Sections 123 BNS and Sections 22(C)/29 of the NDPS Act, no other information was
communicated to him, which would indicate a ground for which the petitioner was arrested in the
aforesaid case. It also appears that apart from other facts, no basic facts which necessitated the arrest of
the petitioner, has been mentioned therein.

10. In the case of Kasireddy Upenderreddy (Supra), the Apex Court has observed that the petitioner
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must be communicated about the acts done by him, which amounts to offence, unless the same is done,
it would not amount to communicating the grounds of arrest. Therefore, it is no longer res integra that
after the judgment of the Apex Court in the case of Pankaj Bansal Vs. Union of India and ors,
reported in (2024) 7 SCC 576, Prabir Purakayastha Vs. State (NCT, Delhi), reported in (2024) 8
SCC 254 as well as Vihaan Kumar Vs. State of Haryana and anr., reported in (2025) 5 SCC 799
that the grounds of arrest are to be communicated to an arrestee, in writing, as soon as possible after
his arrest. If the same is not done, it would be violation of his fundamental rights guaranteed under
Article 22 (1) of the Constitution of India and in such a case arrest itself become vitiated and the
petitioner would be entitled to get bail on that ground.

11. The submission made by the learned Addl. Public Prosecutor to the effect that as in the case of
Kasireddy Upenderreddy (Supra), the Apex Court has observed that at the time of arrest in order to
inform the arrestee that he has committed such an allux “must be told” about the acts done by him,
which amounts to offence would mean that the arresting authority not to be communicated the ground
of arrest in writing, is wrong way of reading the judgment as in the said judgment there is no indication
that grounds of arrest are not required to be communicated in writing.

12. It also appears that the judgment of Kasireddy Upenderreddy (Supra) has been rendered after
the judgment of Pankaj Bansal (Supra) and Probir Purakayastha (Supra).
This court is of the
considered opinion that there is nothing in the judgment of Kasireddy Upenderreddy (Supra) which
would indicate that the Supreme Court has taken a contrary view from that which it took in the case of
Pankaj Bansal (Supra), Prabir Purakayastha (Supra) and Vihaan Kumar (Supra) wherein it has
been clarified that the ground of arrest are to be communicated to an arrestee, in writing, as soon as he
is arrested and any violation of the same it would amount to violation the fundamental rights
guaranteed under Article 22(1) of the Constitution of India to such an arrestee.

13. The submissions made by the learned Addl. Public Prosecutor, referring to the observations made
in the case of Vihaan Kumar (Supra) that if the police effecting the arrest is wanting to prove the
communication of grounds of arrest only on the basis of grounds of arrest it would be sufficient to
show that an endorsement to that effect has been made in the case diary, cannot be accepted as in the
above said judgment the Apex Court has clarified that even if assuming that in the case of police
regarding requirement of Article 22(1) of the Constitution of India is to be accepted based on an entry
into the case diary, there must be a contemporaneous record which records as what are the grounds of
arrest. However, in the instant case, there is no contemporaneous record apart from the case diary is
there to show that what the grounds of arrest were for arresting the present petitioner.

14. Thus, this court intends to clarify that the proposition of law regarding the necessity of furnishing
the grounds of arrest, in writing, has been settled by the aforementioned judgments of the Apex Court
in the case of Pankaj Bansal (Supra), Prabir Purakayastha (Supra) and Vihaan Kumar (Supra).
Any attempt to give any other interpretation to the provisions contained in Article 22(1) of the
Constitution of India as well as Section 47 of the BNSS, would amount to diluting the constitutional
mandate as provided under Article 22 (1) as has been clarified by the Apex Court.

15. In view of the above discussions, this court is of the considered opinion that in the instant case,
notice served on the petitioner under Section 47 of the BNSS is devoid of any ground of arrest and
accordingly, the constitutional fundamental right guaranteed under Article 22(1) of the Constitution of
India has been violated in this case and on that ground the petitioner is entitled to get bail.
Accordingly, the petitioner named above is hereby allowed to go on bail of Rs. 50,000/- (Rupees Fifty
Thousand only) with a suitable surety of like amount, subject to the satisfaction of the learned Special
Judge, Goalpara with the following conditions:-

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(i) the petitioner shall not leave the territorial jurisdiction of the learned Special
Judge (NDPS)-cum-Sessions Judge, Goalpara, without obtaining prior written
permission from the said authority till disposal of the said NDPS Case;

(ii) the petitioner shall regularly attend the trial before the learned Special Judge
(NDPS)-cum-Sessions Judge, Goalpara in the said NDPS Case on the date it is fixed till
conclusion, and shall cooperate with the said Special Court during the trial of the said
NDPS Case;

(iii) the petitioner shall not hamper and/or temper of the evidence of the case,

(iv) the petitioner shall not directly or indirectly make any inducement, threat or
promise to the informant or to any other persons who may be acquainted with the facts
of the case so as to dissuade such person from disclosing such facts before the trial
Court; and.

(v) the petitioner shall not indulge himself in any such criminal activities
including the possession or procurement, transportation and selling of any such NDPS
items.

16. With the above observations, this bail application is disposed of.

JUDGE

Comparing Assistant



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