Gauhati High Court
Page No.# 1/12 vs The State Of Assam on 25 July, 2025
Page No.# 1/12
GAHC010099702025
2025:GAU-AS:9661
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1551/2025
MOHAMMED SIRAJUDDIN
S/O-MD. SALAUDDIN,R/O-KWAKTA KHUMAN WARD NO. 8, P.S-
MOIRANG,DIST-BISHNUPUR, MANIPUR
VERSUS
THE STATE OF ASSAM
TOBE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR F A LASKAR, K AHMED
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 25.07.2025
Heard Mr. N. H. Barbhuiya, learned counsel for the petitioner. Also heard
Mr. K. Baishya, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 483 of the BNSS, 2023 praying for
grant of bail to the accused/petitioner, who has been languishing in jail hajot in
connection with NDPS Case No. 41/2024, arising out of Dillai P.S. No. 64/2023,
registered under Sections 21(c)/29 of NDPS Act, 1985, pending before the Court
of learned Special Judge, Karbi Anglong, Diphu.
3. Scanned copy of the case record has already been received and I have
perused the same.
4. It is submitted by Mr. Barbhuiya, learned counsel for the petitioner, that
the present accused/petitioner is innocent and nothing has been seized from his
conscious possession. On the day of incident, he only accompanied the driver of
the vehicle, who was his friend, and was not aware about the contraband.
However, he got arrested in connection with this case on 16.11.2023 and for
last 1 (one) year, 8 (eight) months & 10 (ten) days, he has been in custody.
More so, the charge-sheet of the case has already been filed and till date, out of
9 (nine) numbers of listed witnesses, only 1 (one) witness has been examined
by the prosecution, who was also examined on 16.11.2024 and since then, no
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witnesses have been examined. Further he submitted that the Presiding Officer
is on leave from 10.04.2025 and the next date for evidence is fixed on
31.07.2025. Thus, he submitted that there is no possibility of completion of trial
within a short period as lots of witnesses are yet to be examined by the
prosecution and hence, considering his period of long incarceration, the
accused/petitioner may be released on bail. He also submitted that the co-
accused person, who was also arrested in connection with this case, had already
been granted bail by this Court vide Order dated 14.05.2025, passed in Bail
Appln. No. 480/2025, and hence, considering the case of the present petitioner
on the same footing, he may also be released on bail on the ground of parity.
5. In that context, Mr. Barbhuiya also relied on following decisions:
(i) Shariful Islam @ Sarif Vs. the State of West Bengal [Special
Leave to Appeal (Crl.) No. 4173/2022]
(ii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal
(Crl.) No(s). 9860/2023]
(iii) Chitta Biswas @ Subhas Vs. the State of West Bengal
[Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No.
8823/20190]
(iv) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special
Leave to Appeal (Crl.) No(s). 5769/2022]
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(v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat
[Special Leave to Appeal (Crl.) No(s). 5530/2022]
(vi) Md. Muslim alias Hussain Vs. State (NCT of Delhi) [2023 SCC
OnLine SC 352]
(vii) Amit Kumar Vs. Union of India [Bail Appln. No. 3805/2024,
decided on 16.12.2024]
(viii) Anil Yadav Vs. Union of India & Anr.[Bail Appln. No.
434/2024, decided on 03.12.2024]
(ix) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
6. Apart from the ground of long incarceration, Mr. Barbhuiya, learned
counsel for the petitioner, further raised the issue that the grounds of arrest
were not communicated to the present accused/petitioner in the Arrest Memo
as well as in the Notice under Section 50 of Cr.P.C., which itself is in violation of
Article 21 & 22(1) of the Constitution of India. It is the mandate of the
Constitution of India that the accused/petitioner as well as his family members
should be intimated the grounds of arrest.
7. Mr. Barbhuiya, learned counsel for the petitioner, also cited the following
decisions of Hon’ble Supreme Court in support of his submissions:
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(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. Barbhuiya 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 as well as in the Notice under
Section 50 Cr.P.C. is itself in violation of Article 22(1) of the Constitution of India
and hence, he submitted that without even going into the detail of the merit of
the case, the present petitioner is entitled to bail.
9. Mr. Baishya, learned Additional Public Prosecutor, submitted in this regard
that a huge quantity of contraband was recovered from the possession of the
accused/petitioner. He further submitted that it is not a case that the accused
was subsequently arrested in connection with this case, but he was caught red
handed and the contrabands were recovered from his conscious possession and
thus, it could not be stated that the accused/petitioner was not aware about his
arrest or the grounds of arrest. More so, there was sufficient compliance of
providing the Notice under Section 50 Cr.P.C. as well as the Arrest Memo
wherein the accused had put his signature. Accordingly, he submitted that the
recovery of the contraband was made from the conscious possession of the
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accused/ petitioner.
10. In that context, Mr. Baishya relied on a decision of Hon’ble Supreme Court
passed in the case of Kasireddy Upender Reddy Vs. State of Andhra
Pradesh & Ors. [Criminal Appeal No. 2808 of 2025 @ SLP (Crl.) No.
7746 of 2025] wherein it is observed that in order to inform the accused for
committing certain offence, he must be told of the acts done by him which
amounts to the offence and that information may be in a precise manner only to
know about the offence alleged to have been committed by him. Paragraph No.
36 of the said judgment reads as under:
“36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the
warrant itself; if the warrant is read over to him, that is sufficient compliance with the
requirement that he should be informed of the grounds for his arrest. If he is arrested
without a warrant, he must be told why he has been arrested. If he is arrested for
committing an offence, he must be told that he has committed a certain offence for
which he would be placed on trial. In order to inform him that he has committed a
certain offence, he must be told of the acts done by him which amounts to the
offence. He must be informed of the precise acts done by him for which he would be
tried; informing him merely of the law applicable to such acts would not be enough.
(See: Vimal Kishore Mehrotra (supra))”
11. Further Mr. Baishya 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 and Case Diary, 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
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he is released on bail. Thus, he raised vehement objection and submitted that
considering the nature and gravity of the offence, it is not at all a fit case to
enlarge the accused/petitioner on bail at this stage merely on the grounds of
the prolonged period of incarceration or the alleged non-communication of the
grounds of arrest.
12. After hearing the submissions made by the learned counsel for both sides
and also on perusal of the Trial Court Record, it is seen that the I.O. has
collected sufficient incriminating materials against the present
accused/petitioner, who has been arrested in a case of commercial quantity. As
stated above, in a case of commercial quantity, rigor of Section 37 will follow
wherein the twin condition has to be satisfied before granting bail to an accused
person. But, from perusal of the case record, it is seen that there are sufficient
evidence against the present accused/ petitioner and accordingly, there cannot
be any reason to believe that the accused is not guilty of the offence and will
not repeat or commit the same offence while on bail.
13. Coming to the issue raised by the learned counsel for the petitioner in
regards to communication of grounds of arrest, it is seen that while issuing the
Arrest Memo as well as Notice under Section 50 Cr.P.C., though the name and
the address of the accused/petitioner along with the case number as well as the
Sections under which he was arrested are being mentioned, but admittedly
there is no mention about the grounds of arrest in the in the Arrest Memo as
well as 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
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mandate that the person should be intimated regarding the grounds of arrest
under which he was taken into custody of police.
14. 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.
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
Page No.# 9/12the 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.”
15. 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 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.”
16. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest in the Arrest Memo as well as in the Notice issued
to the present accused/petitioner and his family members under Section 50
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Cr.P.C. 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 50 Cr.P.C., 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.
17. 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.”
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18. 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 has already been filed finding prima facie materials against the present
petitioner and the trial has also commenced. However, considering the fact that
the grounds of arrest were not communicated to the petitioner or mentioned in
the Arrest Memo as well as in the Notice issued to the present
accused/petitioner and his family members under Section 50 Cr.P.C. and also
considering the fact that the co-accused persons have already been granted bail
by this Court vide Order dated 14.05.2025, passed in Bail Appln. No. 480/2025,
this Court find it a fit case to extend the privilege of bail to the
accused/petitioner.
19. 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
Special Judge, Diphu, Karbi Anglong, the accused/petitioner, namely,
Mohammed Sirajuddin, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Diphu, Karbi Anglong, 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
Page No.# 12/12facts 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 Special Judge, Diphu, Karbi Anglong; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
SSpecial Judge, Diphu, Karbi Anglong, without prior permission.
20. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant