Gauhati High Court
Faijul Haque Alias Faizul Haque vs The State Of Assam on 13 June, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010115812025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1804/2025
FAIJUL HAQUE ALIAS FAIZUL HAQUE
S/O ANOWAR HUSSAIN
R/O VILL- MOKHANIA, BORMBOI, P.S. HAJO
DIST. KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 13.06.2025
Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. P.S.
Lahkar, learned Additional Public Prosecutor for the State.
2. By filing this third bail application under Section 483 BNSS, 2023, the
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petitioner, namely, Faijul Haque @ Faizul Haque, has sought for bail in
connection with NDPS Case No. 31/2024(corresponding to North
Guwahati P.S. Case No. 151/2023) under Sections 279/338/34 of IPC
r/w Section 21(C)/29 of NDPS Act and Section 25(1-A)/27/35 of Arms
Act, pending in the court of learned Special Judge, Kamrup, Amingaon.
3. The brief facts of the case is that on 03.12.2023, police received an
information about a commercial quantity of narcotics being transported in a
Swift car bearing Regd. No. AS-01-FQ-8535 from Hajo to Amingaon.
Accordingly, the police personnel upon locating the vehicle near Judicial
Academy, Amingaon, the occupants fired at the police, injuring two officers and
attempted to flee but after a chase, the accused/petitioner was apprehended.
One of the accused Salam was declared dead by the Doctor. During search, a
factory-made pistol, ammunition and 30 soap boxes of heroin recovered from
the said vehicle. Thereafter, a case was registered against the petitioner and
other co-accused.
4. The learned counsel for the petitioner has submitted that the petitioner
was arrested on 03.12.2023 and since then he has been detained in custody.
The prosecution has cited 37(Thirty Seven) witnesses in the charge sheet and
charge was framed on 06.03.2025. However, no any witness has been examined
till date.
5. The main thrust of argument for the learned counsel for the petitioner is
that no grounds of arrest was communicated to the petitioner in the notice
served upon him U/S 50 Cr.P.C. (U/S 47 BNSS) or in the arrest memo which are
mandatory in nature, which resulted in violation of his fundamental rights
guaranteed under Articles 21/22 of the Constitution of India.
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In support of his submission, learned counsel for the petitioner has placed
reliance on the following case laws-
(i) Vihaan Kumar vs. State of Haryana, reported in (2025) SCC
Online SC 269.
(ii) Prabir Purkayastha vs. State of (NCT of Delhi), reported in (2024)
8 SCC 254.
6. According to learned counsel for the petitioner, the said guidelines of the
Hon’ble Supreme Court has not been followed in the instant case. Hence, due to
such irregularities made by the investigating agency during investigation, the
accused petitioner may be enlarged on bail.
7. Per contra, Mr. Lahkar, learned Additional Public Prosecutor for the State
has vehemently opposed in granting bail to the petitioner by stating that the
alleged contraband item was recovered from the possession of the petitioner. As
such, Section 37 of the NDPS Act will come into play.
8. Learned Additional Public Prosecutor by relying on para No. 28 of the case
of Kasireddy Upender Reddy vs. State of Andhra Pradesh and Ors.,
reported in SLP(CRL.) No. 5691 of 2025, the Hon’ble Supreme Court held
that “for the purpose 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.”
9. Learned Additional Public Prosecutor also referred the case of Ram Kishor
Arora vs. Directorate of Enforcement, reported in (2023) 16 S.C.R. 743,
the Hon’ble Supreme Court held that ” as discernible from the judgment in
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Pankaj Bansal case also noticing the inconsistent practice being followed by the
officers arresting the persons under Section 19 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).”
10. Learned Additional Public Prosecutor has pointed out the allegations
against the accused petitioner in the FIR, wherein it is reflected that the present
petitioner was one of the occupants of the Swift vehicle bearing no AS01-FQ-
8535 and two other occupants were also present inside the vehicle i.e. co-
accused Hiranya Thakuria and another Salam who expired during the exchange
of shootout between police and the accused persons.
11. It is also submitted that inside the car near the driver’s seat, one factory
made pistol with one magazine containing two live rounds was found and in the
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rear seat, a black colored bag was found which contained the contraband items.
The firearms and the narcotic drugs were seized and all three occupants were
shifted to the Hospital.
12. According to the learned Additional Public Prosecutor, as the petitioner
was apprehended along with narcotic drugs and the petitioner and the co-
accused started firing towards police personnel in order to escape from the
scene, under such backdrop, it cannot be said that they have no knowledge
regarding the grounds of their arrest.
13. I have considered the submissions of learned counsel for the parties and
also perused the trial court record which reflects that the accused petitioner was
shifted to Hospital immediately after apprehension as the petitioner and the co-
accused who occupied the swift car started firing towards the police personnel
from inside the vehicle and as a retaliation, the police also fired towards the
accused. As a result of which, the petitioner and the co-accused sustained
injuries and one of them died on the spot.
14. In Prabir Purkayastha‘s case (Supra), a contention was raised that grounds
of arrest were not informed to the accused either orally or in writing, and
therefore, there was gross violation of the constitutional mandate under Article
22(1) of the Constitution of India and Section 50(1) of Cr.PC. In the said case,
the Hon’ble Supreme Court, after extensively referring to its earlier judgment in
Pankaj Bansal’s case (Supra), in paragraphs 20 to 22 and 29 to 31, has observed
as under –
“20. 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
Page No.# 6/14offence(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 Life and Personal Liberty is the most sacrosanct
fundamental right guaranteed under Articles 20, 21 and 22 of the
Constitution of India. Any attempt to encroach upon this
fundamental right has been frowned upon by this Court in a
catena of decisions. In this regard, we may refer to the following
observations made by this Court in Roy V.D. v. State of Kerala –
(2000) 8 SCC 590.
“7. The life and liberty of an individual is so sacrosanct that it
cannot be allowed to be interfered with except under the authority
of law. It is a principle which has been recognized and applied in
all civilized countries. In our Constitution Article 21 guarantees
protection of life and personal liberty not only to citizens of India
but also to aliens.”
Thus, any attempt to violate such fundamental right, guaranteed
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by Articles 20, 21 and 22 of the Constitution of India, would have
to be dealt with strictly.
22. 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 committed at the time of arresting the accused
and the grant of initial police custody remand to the accused.
29. The language used in Article 22(1) and Article 22(5) of the
Constitution of India regarding the communication of the grounds
is exactly the identical. Neither of the constitutional provisions
requires that the ‘grounds’ of “arrest” or “detention”, as the case
may be, must be communicated in writing. Thus, interpretation to
this important facet of the fundamental right as made by the
Constitution Bench while examining the scope of Article 22(5) of
the Constitution of India would ipso facto apply to Article 22(1) of
the Constitution of India insofar the requirement to communicate
the grounds of arrest is concerned.
30. Hence, we have no hesitation in reiterating that the
requirement to communicate the grounds of arrest or the grounds
of detention in writing to a person arrested in connection with an
offence or a person placed under preventive detention as provided
under Articles 22(1) and 22(5) of the Constitution of India is
sacrosanct and cannot be breached under any situation. Non-
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compliance of this constitutional requirement and statutory
mandate would lead to the custody or the detention being
rendered illegal, as the case may be.
31. Furthermore, the provisions of Article 22(1) have already been
interpreted by this Court in Pankaj Bansal (supra) laying down
beyond the pale of doubt that the grounds of arrest must be
communicated in writing to the person arrested of an offence at
the earliest. Hence, the fervent plea of the learned ASG that there
was no requirement under law to communicate the grounds of
arrest in writing to the appellant-accused is noted to be rejected.”
15. In Prabir Purkayastha‘s case (Supra) , after referring to the judgment in
Ram Kishor Arora‘s case (Supra) and Pankaj Bansal’s case (Supra), the Hon’ble
Supreme Court has held that the judgment in Pankaj Bansal’s case would apply
retrospectively, and it is also held that the ratio laid down in Pankaj Bansal’s
case is the law of the land binding on all the Courts in the country by virtue
of Article 141 of the Constitution of India. In paragraphs 45 & 46 of Prabir
Purkayastha‘s case (Supra), the Hon’ble Supreme Court has observed as under –
“45. It was the fervent contention of learned ASG that in the case
of Ram Kishor Arora (Supra), a two- Judge Bench of this Court
interpreted the judgment in the case of Pankaj Bansal (Supra) to
be having a prospective effect and thus the ratio of Pankaj Bansal
(Supra) cannot come to the appellant’s aid. Indisputably, theappellant herein was remanded to police custody on 4th October,
2023 whereas the judgment in the case of Pankaj Bansal (Supra)
was delivered on 3rd October, 2023. Merely on a conjectural
Page No.# 9/14submission regarding the late uploading of the judgment, learned
ASG cannot be permitted to argue that the ratio of Pankaj Bansal
(Supra) would not apply to the present case. Hence, the plea ofShri Raju, learned ASG that the judgment in Pankaj Bansal (Supra)
would not apply to the proceedings of remand made on 4th
October, 2023 is misconceived.
46. We are of the firm opinion that once this Court has interpreted
the provisions of the statute in context to the constitutional
scheme and has laid down that the grounds of arrest have to be
conveyed to the accused in writing expeditiously, the said ratio
becomes the law of the land binding on all the courts in the
country by virtue of Article 141 of the Constitution of India.”
16. In Arvind Kejriwal’s case (Supra) – 2024 SCC Online SC 1703, at paragraph
73, the Hon’ble Supreme Court has observed as under –
“73. In Prabir Purkayastha (Supra), this Court went beyond the
rigors of the PML Act/UAPA. Drawing a distinction between
“reasons to arrest” and “grounds for arrest”, it held that while the
former refers to the formal parameters, the latter would require all
such details in the hands of the investigating officer necessitating
the arrest. Thus, the grounds of arrest would be personal to the
accused.”
17. In Ram Kishor Arora‘s case (Supra), the Hon’ble Supreme Court has held
that such service of grounds of arrest must be performed at an outer limit,
within 24 hours of arrest.
18. In KVR Vidyasagar’s case (Supra), the High Court of Andhra Pradesh in
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paragraph 44 & 45, has observed as under –
“44. As discussed above, the Hon’ble Apex Court in Pankaj
Bansal’s case, with reference to section 19(1) of the Prevention of
Money Laundering Act, 2002 and Article 22 of the Constitution of
India observed that “grounds of arrest be communicated in
writing”. The Hon’ble Apex Court in Prabir Purkayastha‘s case
explained the difference between the ‘reasons for arrest’ and
‘grounds of arrest’, stating that the grounds of arrest may convey
to the arrested accused all basic facts, on which he was being
arrested to provide him an opportunity of defending himself
against the 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.
45. Therefore, to comply mandate of Article 22(1) of the
Constitution of India and section 47(1) of BNSS, 2023 in its sprit, I
am of the considered opinion that the grounds of arrest must be
informed in writing conveying the basic facts, on which the
accused was arrested to provide him an opportunity of defending
himself against the custodial remand and to seek bail.”
19. It is the contention of the learned Additional Public Prosecutor that
immediately after the arrest of the petitioner on 03.12.2023, he was served with
a memo of arrest and Section 50 Cr.P.C. notice which are available in the record.
Perusal of the same would go to show that the petitioner has received the same
under acknowledgment and his signature is found on the said memo of arrest
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and Section 50 Cr.P.C. notice. It is not the case of the petitioner that he has not
received the said Section 50 notice or memo of arrest. The said memo of arrest
dated 03.12.2023 which reads as follows –
“1. Name of Police Station :- North Guwahati
2. Case DGE Ref :- Case No. 151/23 u/s
353/333/307/279/338/39 IPC R/W SC-21(c)/29 NDPS Act,
R/W Section 25(1-A) 27/35 Arms Act.
3. Name of arrestee with full particulars, age etc.:-
Sri Faijul Haque (29 years)
S/o Anowar Hussain
Vill- Mokhania
P.S. Hajo, Dist- Kamrup
4. Date and time of arrest- On 03/12/2023 at 9 PM
5. Signature of witness:- Samiran Begum
6. Any injury at the time of arrest:- As per inspection
memo.
7. Whether release on bail or forwarded date etc :-
04/12/2023
8. Signature of arrestee :- Faijul Haque
9. Signature of police officer :- Illegible.”
20. In Prabir Purkayastha‘s case (Supra), the Hon’ble Supreme Court has
observed that 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.
21. In the intimation notice, in the case in hand, dated 03.12.2023, all basic
facts of the case in which the petitioner was being arrested has been mentioned
indicating the case number and the provisions of law under which he was
arrested and he was informed to take necessary legal recourse through his
Advocate.
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22. In Prabir Purkayastha‘s case (Supra), after referring to the judgment of
Pankaj Bansal’s case (Supra) , the Hon’ble Supreme Court has specifically held
that the grounds of arrest should be served in writing to the arrested accused
mentioning the basic facts on which he is being arrested so as to provide him an
opportunity of defending against custodial remand and to seek bail. Such basic
facts of the case in which the petitioner was arrested in this case is found in the
memo of arrest dated 03.12.2023. I have no hesitation to hold that the
respondent- Police have followed the law laid down by the Hon’ble Supreme
Court in Pankaj Bansal’s case and Prabir Purkayastha‘s case (Supra), and no
legal infirmity can be found in the arrest of the petitioner.
23. In Ram Kishor Arora‘s case (Supra), the Hon’ble Supreme Court has
examined the judgment in Pankaj Bansal’s case (Supra) and in paragraphs 16 &
22, it is observed as under –
“16. In view of the aforestated proposition of law
propounded by the Constitution Benches, there remains no
shadow of doubt that the law laid down by the three-Judge
Bench in Vijay Madanlal Choudhary that Section 19(1) PMLA
has a reasonable nexus with the purposes and objects
sought to be achieved by the PML Act and that the said
provision is also in the compliant with the mandate
of Article 22(1) of the Constitution of India, any observation
made or any finding recorded by the Division Bench of
lesser number of Judges contrary to the said ratio laid
down in Vijay Madanlal Choudhary would be not in
consonance with the jurisprudential wisdom expounded by
the Constitution Benches in cases referred above. The
Page No.# 13/14three-Judge Bench in Vijay Madanlal Choudhary having
already examined in detail the constitutional validity
of Section 19 PMLA on the touchstone of Article 22(1) and
upheld the same, it holds the field as on the date.
22. In Vijay Madanlal Choudhary it has been categorically
held that so long as the person has been informed about
the grounds of his arrest, that is sufficient compliance with
mandate of Article 22(1) of the Constitution. It is also
observed that the arrested person before being produced
before the Special Court within twenty-four hours or for
that purposes of remand on each occasion, the Court is
free to look into the relevant records made available by the
authority about the involvement of the arrested person in
the offence of money-laundering. Therefore, in our opinion
the person arrested, if he is informed or made aware orally
about the grounds of arrest at the time of his arrest and is
furnished a written communication about the grounds of
arrest as soon as may be i.e. as early as possible and
within reasonably convenient and requisite time of twenty-
four hours of his arrest, that would be sufficient compliance
of not only Section 19 PMLA but also of Article 22(1) of the
Constitution of India.”
24. It also appears from the record that in connection with the alleged
incident, the statement of three persons who were present on the spot were
recorded by the Magistrate u/s 183 BNSS (Section 164 Cr.PC) wherein they
stated that the swift vehicle was occupied by three persons including the
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present petitioner and they started firing towards the police personnel who
chased them and driver of the vehicle drove the vehicle with high speed and
fled away from the scene.
25. From the record, it also reveals that the accused petitioner was admitted
to GMCH on 03.12.2023 and subsequently discharged on the same day and
brought him to the police station. Accordingly, arrest memo and the Section 50
notice were issued to the petitioner at the time of his arrest as aforesaid.
26. In the case in hand, though there is no specific revelation regarding
grounds of arrest in Section 50 notice or arrest memo, but the sequence is
something different. As it appears that the petitioner was one of the occupants
of the alleged vehicle from which the alleged contraband was recovered and to
evade arrest, gunfight took place between the accused and the police and the
petitioner was injured for which he was admitted to the hospital. Under such
backdrop, it cannot be said that the accused petitioner was not aware of the
fact why he was being arrested in connection with this case. Accordingly, the
cited case laws vide Prabir Purkashyatha (supra) and Vihaan Kumar (supra) are
not applicable in the instant case.
27. In view of the aforesaid discussion and under the facts and circumstances
of the case, the Court is not inclined to grant bail to the petitioner and hence,
the prayer for bail is rejected.
28. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant
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