Gauhati High Court
Abdul Hoque vs The State Of Assam on 16 June, 2025
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GAHC010109362025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1672/2025
ABDUL HOQUE
S/O- LATE IMAN ALI.
R/O- VILL.- RAJABALA,
P.S.- PHULBARI, DIST.- WEST GARO HILLS, MEGHALAYA.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP, ASSAM
Advocate for the Petitioner : MOTIUR RAHMAN, MR. O ULLAH,MR. A S TAPADER
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 16-06-2025
Heard Mr. M. Rahman, the learned counsel for the petitioner. Also heard
Mr. M. P. Goswami, the learned Additional Public Prosecutor appearing on behalf
of the State respondent.
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2. This is an application under Section 483 of Bharatiya Nyay Suraksha
Sanhita, 2023 praying for grant of bail to the accused/petitioner, who has been
arrested in connection with NDPS Case No. 161/2023 [arising out of Jalukbari P.
S. Case No. 269/2023] registered under Section 29 of NDPS Act which is
pending before the Court of learned Additional Sessions Judge No. 5, Kamrup
(Metro).
3. Scanned copy of the LCR has already been received. Perused the same.
4. It is submitted by Mr. Rahman, the 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 recovered from his possession and he was
arrested in connection with this case only on the basis of the statement made
by the co-accused u/s 67 NDPS. However, it is the settled position that the
statement of the co-accused or the voluntary statement recorded under Section
67 of the NDPS Act is not admissible at the time of trial or that cannot be the
basis for conviction. In that context, he also relied on a decision of Hon’ble
Supreme Court passed in the case of State Vs. Pallulabid Ahmad Arimutta
& Anr., reported in AIR Online 2022 SC 130, wherein, the case of Tofan
Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1] is also relied on. He
accordingly emphasized on paragraph Nos. 9 & 10 of the said judgment,, which
read as under:
“9. Having gone through the records alongwith the tabulated statement of the
respondents submitted on behalf of the petitioner-NCB and on carefully perusing the
impugned orders passed in each case, it emerges that except for the voluntary
statements of A-1 and A-2 in the first case and that of the respondents themselves
recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial
material was available with the prosecution at the time of arrest to connect the
respondents with the allegations levelled against them of indulging in drug trafficking.
It has not been denied by the prosecution that except for the respondent in SLP (Crl.)
Page No.# 3/13No. 1569/2021, none of the other respondents were found to be in possession of
commercial quantities of psychotropic substances, as contemplated under the NDPS
Act.
10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu [6 (2021) 4
SCC 1], that a confessional statement recorded under Section 67 of the NDPS Act will
remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the
aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the
confession/voluntary statements of the respondents or the co-accused under Section
67 of the NDPS Act, cannot form the basis for overturning the impugned orders
releasing them on bail. The CDR details of some of the accused or the allegations of
tampering of evidence on the part of one of the respondents is an aspect that will be
examined at the stage of trial. For the aforesaid reason, this Court is not inclined to
interfere in the orders dated 16 th September, 2019, 14th January, 2020, 16th January,
2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary
No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No.
1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are,
accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking
cancellation of bail granted to the respective respondents, are dismissed as meritless.”
5. Mr. Rahman further submitted that the accused-petitioner is in custody
since last 2 years 1 month 11 days and out of 7 nos. of accused/persons 6 have
been granted bail by the Trial Court as well as the Hon’ble Coordinate Benches
of this Court. So considering the case of the present petitioner on same footing,
his bail prayer may be considered on the ground of parity.
More so, the petitioner is in custody for more than 2 years. But, the
prosecution could not examine any witness till date out of 11 nos. of cited
witnesses for the prosecution and thus it would take a considerable period for
completion of the entire trial. Hence considering the ground of long
incarceration the petitioner may be released on bail. He is the permanent
resident of his addressed locality and hence there is no chance of absconding
rather, he will appear before the learned Trial Court below on each and every
date to be fixed by the Court.
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6. Mr. Rahman, the learned counsel for the petitioner has submitted that the
grounds of arrest was not mentioned while furnishing the Arrest Memo,
Inspection Memo and issuing notice under Section 50 of the Cr.P.C., which is a
mandatory requirement. He also submitted that the family members were also
not served with any notice u/s 48A of BNSS intimating grounds of arrest 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.
7. In support of his submissions, Mr. Rahman, learned counsel for the
petitioner, has cited 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. Mr. Rahman 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 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.
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9. Mr. Goswami, the learned Additional Public Prosecutor, submitted in this
regard that though there was no recovery from the present petitioner but from
the materials in the Case Diary it is seen that he is one of the prime accused
and in connivance of the other accused/persons committed the offence under
the NDPS Act.
10. Accordingly, 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 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.
11. Mr. Goswami further submitted that the present accused/petitioner got
arrested in connection with this case on 06.05.2023 i.e. prior to the judgment
passed in case of Pankaj Bansal (supra) i.e. 03.10.2023. He further
submitted that the Hon’ble Coordinate Benches of this Court also considered
that the arrest which has been made prior to the judgment passed in Pankaj
Bansal (supra) i.e. 03.10.2023, there is no mandatorily required provision for
furnishing or communicating the grounds of arrest in written form.
12. Mr. Goswami further submitted that the communication of written grounds
of arrest was first considered by the Hon’ble Supreme Court in the case of
Pankaj Bansal v. Union of India, reported in (2024) 7 SCC 576 and the
judgment and order was passed on 03.10.2023 wherein it was held that the
communication of grounds of arrest in written form is mandatory. But, the
judgment passed in Pankaj Bansal (supra) was prospective in nature where
the written communication of grounds of arrest is applicable to the arrestee only
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after the order passed by the Hon’ble Supreme Court in case of Pankaj Bansal
(supra) and there was no retrospective effect to the said judgment. Further he
submitted that in case of Ram Kishore Arora v. Directorate of
Enforcement, reported in (2024) 7 SCC 599, in para 23 of the said judgment
it has been held that:-
“23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent
practice being followed by the officers arresting the persons under Section 19 of PMLA,
directed to furnish the grounds of arrest in writing as a matter of course, “henceforth”,
meaning thereby from the date of the pronouncement of the judgment. The very use of the word
“henceforth” implied that the said requirement of furnishing grounds of arrest in writing to the
arrested person as soon as after his arrest was not the mandatory or obligatory till the date
of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the
Appellant that the said judgment was required to be given effect retrospectively cannot be
accepted when the judgment itself states that it would be necessary “henceforth” that a copy of
such written grounds of arrest is furnished to the arrested person as a matter of course and
without exception. Hence non furnishing of grounds of arrest in writing till the date of
pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the
action of the concerned officer in not furnishing the same in writing could be faulted with. As
such, the action of informing the person arrested about the grounds of his arrest is a sufficient
compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held
in Vijay Madanlal (supra).”
13. Mr. Goswami further submitted that the witnesses could not be examined
by the prosecution due to absence of the learned Trial Court below as well as
due to pendency of the various petitions before the learned Trial Court below.
However, the process for issuing summons to the witnesses has already been
taken by learned Trial Court below for procuring the attendance of the
witnesses. Mr. Goswami further submitted that the main objective of 50(2) Cr.PC
for information of the grounds of arrest is to entitle him for release on bail or for
arrange of surety on his behalf. The grounds of arrest may not be specified in
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written form but the accused/petitioner is well aware about the reasons/grounds
of arrest. More so, he submitted that from the record of LCR it is seen that the
learned Trial Court below at the time of production of the accused/petitioner
before the learned Trial Court below on 06.05.2023, the learned Magistrate had
explained regarding the engagement of Advocate for defending him in this case
and also for the information to his family members while passing the order of
remand on 06.05.2023. Thus it is seen that there were sufficient compliance of
Article 22(1) of the Constitution of India. Mr. Goswami further submitted that
two accused/persons had already moved an application before the Hon’ble
Supreme Court wherein the Hon’ble Supreme Court had directed to expedite the
trial and to complete the same within 9 months from the date of receipt of order
passed in Special Leave Application by the Hon’ble Supreme Court. The order
was passed on 25.09.2024 and from said date the 9 months is yet to be
completed as per direction of the Hon’ble Supreme Court. Accordingly Mr.
Goswami submitted that it is not at all a fit case to consider his bail application
at this stage. However, the learned Trial Court may be directed for expeditious
trial of the present case.
14. Hearing the submissions made by the learned counsels for both sides, I
have also perused the case record which has already been received by this
Court. From record it is seen that the accused/petitioner is in custody since
more than 2 years but till date the prosecution could not examine any of the
witnesses out of 11 nos. of cited witnesses by the prosecution. Further it is seen
that the prayer for bail of the present accused/petitioner was rejected by this
Court on 09.05.2024 directing the learned Trial Court below to expedite the trial
proceeding and to make effort to dispose of the matter as early as possible. But
surprisingly even after the lapse of more than 1 year the prosecution could not
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examine any of the witnesses out of 11 nos. of prosecution witnesses. Thus it
cannot be expected for completion of the trial within a very near future as the
prosecution could not even examine any single witness till date.
15. It is an admitted fact that the case is of commercial quantity and on
perusal of the case record it is seen that the I/O collected sufficient
incriminating materials against the present accused/petitioner. But, in the same
time it cannot be denied that the prosecution had failed to examine any witness
till date in spite of long incarceration of the present petitioner. Further it is seen
that in spite of the direction passed by Hon’ble Apex Court, the prosecution also
could not examine the witnesses till date and hence completion of trial within
very short period also cannot be expected. The Hon’ble Apex Court in the
following cases had granted bail to the applicant considering the period of long
incarceration:-
(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) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal (Crl.) No(s).
9860/2023]
(iv) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068]
(v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat [Special Leave to
Appeal (Crl.) No(s). 5530/2022]
16. Coming to the issue raised by the petitioner in regards to non-
communication of the grounds of arrest it is seen that the notice u/s 50 Cr.PC as
well as the Arrest Memo and Inspection Memo do not specify the grounds of
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arrest while providing those to the petitioners. It is also a settled law that the
judgment passed by Constitutional Court always has the retrospective effect
unless the judgment itself specifically speaks that the judgment will operate
prospectively. In this context the decision of the Hon’ble Supreme Court passed
in Special Leave Petition (Criminal) Nos. 8609-8614 of 2024 [Kanishk
Sinha & Anr. Vs. The State of West Bengal & Anr.], wherein in paragraph
No. 3 of the judgment, it has been observed as under:
“…
Now the law of prospective and retrospective operation is absolutely clear. Whereas a
law made by the legislature is always prospective in nature unless it has been
specifically stated in the statute itself about its retrospective operation, the reverse is
true for the law which is laid down by a Constitutional Court, or law as it is
interpretated by the Court. The judgment of the Court will always be retrospective in
nature unless the judgment itself specifically states that the judgment will operate
prospectively. The prospective operation of a judgment is normally done to avoid any
unnecessary burden to persons or to avoid undue hardships to those who had bona
fidely done something with the understanding of the law as it existed at the relevant
point of time. Further, it is done not to unsettle something which has long been
settled, as that would cause injustice to many.”
17. 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 & 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.
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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 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.”
18. 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
Page No.# 11/13of 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.”
19. 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.”
20. In the same time, it also cannot be denied that the accused/petitioner is
behind the bar for more than last 2 years 1 month 11 days and out of 7 nos. of
accused/persons 6 have been granted bail by the Trial Court as well as the
Hon’ble Coordinate Benches of this Court. It also cannot be denied that to
examine the witnesses, the prosecution may take a considerable period for
completion of the trial.
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21. 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 50 Cr.P.C., and also considering the period of
incarceration already undergone by the accused/petitioner, i.e. 2 years 1 month
11 days and considering the view expressed by the Hon’ble Supreme Court in
the case of Pankaj Bansal (supra), Prabir Purkayastha (supra) and Vihan
Kumar (supra) referred to hereinabove, without going much detail to the merit
of the case I find it a fit case to extend the privilege of bail to the
accused/petitioner.
22. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/-
(Rupees One lakh only) with 2 (two) sureties of like amount, provided that one
surety has to be a government servant, to the satisfaction of the learned
Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup (Metro),
the accused/petitioner, namely, Abdul Hoque, be enlarged on bail, subject to the
following conditions:
(i) that the petitioner shall appear before the Court of learned
Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup
(Metro), 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
Page No.# 13/13before the learned Additional Sessions Judge-cum-Special Judge
(NDPS) No. 5, Kamrup (Metro); and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup
(Metro), without prior permission.
23. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant