Gauhati High Court
Harekrishna Deb Nath @ Hara Krishna … vs The State Of Assam on 28 March, 2025
Page No.# 1/9
GAHC010063902025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./933/2025
HAREKRISHNA DEB NATH @ HARA KRISHNA DEBNATH
S/O ANIL DEB NATH
R/ O VILL-BAZARGHAT
P.S. RATABARI
DIST. KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED,U U
KHAN
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 28.03.2025
Heard Mr. M A Choudhury, learned counsel for the petitioner. Also heard
Mr. R J Baruah, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with Special
(NDPS) Case No. 108/2024, arising out of Badarpur P.S. Case No. 262/2024,
registered under Section 21(c)/25/29 of NDPS Act, pending before the Court of
learned Session Judge, Karimganj.
3. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that
the present accused/petitioner is innocent and he is no way involved in the
alleged offence. He got arrested in connection with this case only on suspicion
and nothing has been recovered from his conscious possession. He was arrested
on 11.11.2024 and for last 136 days he has been in custody. More so, he was
arrested only on the basis of the statement of the co-accused recorded under
Section 67 of NDPS Act, which is not admissible as per the ratio laid down by
the Hon’ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu
[(2021) 4 SCC 1], wherein it has been held that the statement of the co-
accused person recorded under Section 67 NDPS Act is not tenable in the eye of
law and it cannot be the basis of the conviction.
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4. Apart from raising the above issue, Mr. Choudhury, learned for the
petitioner, also raised the issue that the grounds of arrest were not mentioned in
the Arrest Memo as well as in the Notice issued to the present petitioner under
Section 47 BNSS, which is mandatorily required and non-compliance of the
same is in violation of Articles 21 & 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.
5. In support of his submissions, Mr. Choudhury, 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.
6. He further 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 47 BNSS is itself in violation of
Article 22(1) of the Constitution of India and hence, without even going into the
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detail of the merit of the case, the present petitioner is entitled to bail.
7. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard
that during investigation, the I.O. collected sufficient incriminating materials
against the present accused/petitioner. From the F.I.R. itself, it is seen that there
are sufficient incriminating materials against the petitioner. He further submitted
that the I.O. has to investigate the case on the basis of the statement of the co-
accused in absence of any other materials available before him and during
investigation only, it has come out that the present accused/petitioner is
involved in the alleged offence. He further submitted that the case of Tofan
Singh (supra) does not bar the Investigating Agency to proceed with the
investigation on the basis of statement of the co-accused or on the basis of the
statement recorded under Section 67 NDPS Act. The charge-sheet has already
been filed in this case on 10.02.2025 vide Charge-Sheet No. 17/2025, finding
prima facie case against the petitioner, wherein the prosecution has relied on of
13 (thirteen) numbers of witnesses. Thus, he submitted that this is not at all a
fit case to grant bail to the accused/petitioner only considering the length of
detention of the present accused/petitioner. More so, he submitted that the case
is of commercial quantity and hence, he raised objection in granting bail to the
accused/ petitioner.
8. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the annexures filed along with
the petition, more particularly, the Arrest Memo and Notice under Section 47 of
BNSS, issued to the present accused/petitioner. It is accordingly seen that while
issuing the Notice, though the name and the address of the accused/petitioner
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along with the case number as well as the Sections under which he was being
arrested mentioned, but admittedly there is no mention about the grounds of
arrest in the in the Notice. Thus, it is the admitted position that the grounds of
arrest were not intimated to the accused/petitioner or to his family members at
the time of his arrest which is a statutory right of an accused and it is also a
constitutional mandate that the person should be intimated regarding the
grounds of arrest under which he was taken into custody of police.
9. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 47 of BNSS rendering the arrest and
subsequent remand of the accused/petitioner invalid. The accused/petitioner
has the fundamental and statutory right to be informed about the grounds of
arrest in writing and copy of such written ground of arrest have to be furnished
to the arrested person as a matter of course and without any explanation. Non-
supply of written grounds of arrest to the arrested accused/ petitioner would
vitiate the arrest even if the case has been charge-sheeted.
10. 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 No. 19 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
Page No.# 6/9Constitution of India.
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.”
11. 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
Page No.# 7/9arrest 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 of 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.”
12. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest in the Notice issued to the present
accused/petitioner under Section 47 BNSS and except the name, address and
the case numbers, there is no mention about any other particulars of the
offence as well as the grounds of arrest. So, from the proviso of Section 47
BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the
Constitution of India and in such cases, in spite of the statutory restrictions
under Section 37 of the NDPS Act, this Court is of the considered opinion that
for the violation of the constitution mandate contained under Article 22(1) of the
Constitution of India, the arrest of the petitioner is vitiated and it may be a
sufficient ground to consider his bail application in spite of rigor of Section 37 of
the NDPS Act which provides the restriction in granting bail in the cases of
commercial quantity under the NDPS Act.
13. 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:
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“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.”
14. In view of the entire discussions made above, it is the opinion of this Court
that the period of incarceration undergone by the accused/petitioner may not be
a good ground for considering his bail application at this stage as the charge-
sheet was filed on 10.02.2025 and the trial is about to be commenced. However,
considering the fact that the grounds of arrest were not communicated to the
petitioner or mentioned in the Arrest Memo and Notice issued to the present
accused/petitioner under Section 47 BNSS, this Court find it a fit case to extend
the privilege of bail to the accused/petitioner.
15. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that
one surety has to be a government servant, to the satisfaction of the learned
Session Judge, Karimganj, the accused/petitioner, namely, Harekrishna Deb
Nath, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Session
Judge, Karimganj, on each and every date to be fixed by the Court;
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(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 before
the learned Session Judge, Karimganj; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Session Judge, Karimganj, without prior permission.
16. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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