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Gauhati High Court
Page No.# 1/12 vs The Union Of India on 15 May, 2025
Page No.# 1/12
GAHC010073182025
2025:GAU-AS:6050
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1352/2025
MONIRUL ISLAM
S/O GOL BAHAR SHEIKH
VILLAGE HATSINGIMARI, SOUTH SALMARA, PO HATSINGIMARI,
DISTRICT- SOUTH SALMARA MANKACHAR, PIN-783135
VERSUS
THE UNION OF INDIA
REPRESENTED BY SC, NCB
Advocate for the Petitioner : MS. T SOM, MS. U HAZARIKA
Advocate for the Respondent : SC, NCB,
Page No.# 2/12
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
15.05.2025
Heard Mr. Y. S. Manan, learned counsel for the petitioner. Also heard Ms.
N. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned
Standing Counsel, NCB for the 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 NCB
Case No. 24/2022, registered under Section 8(C) read with Section 20(B) (II)
(C)/21(C)/22(C) and 29 of the NDPS Act, corresponding to NDPS Case No.
23/2023, which is pending before the Court of learned District and Sessions
Judge, Kamrup, Amingaon.
3. Scanned copy of the TCR as called for, has already been received and I
have perused the same.
4. It is submitted by Mr. Manan, learned counsel for the petitioner, that the
present accused/petitioner is innocent and he is no way connected to the
alleged offence, as he was merely the co-driver. From the forwarding report, it is
evident that no specific allegation has been brought against the
accused/petitioner. Furthermore, the I.O. had prayed for police remand only in
respect of the co-accused, namely Jitul Ali. The petitioner got arrested on
19.12.2022 and since last 2 (two) years and 6 (six) months, he has been in
custody. The charge-sheet has been submitted and accordingly, the charge was
framed on 06.11.2023, but till date, the prosecutor could examine only 3 (three)
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witnesses out of 12 (twelve) numbers of listed witnesses and there is no
probability of completion of trial within a short period as lots of witnesses are
yet to be examined by the prosecution and therefore he submitted that
considering the period of long incarceration, the petitioner may be enlarged on
bail.
5. In that context, Mr. Manan also relied on following decisions:
(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022
SCC OnLine SC 2068]
(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order
dated 01.08.2022 in SLP Crl. No. 4173/2022]
(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023
SCC OnLine SC 352]
(iv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(v) Md. Salman Hanif Shaikh Vs. State of Gujarat [SLA Criminal
No. 5530/2022, decided on 22.08.2022]
6. Mr. Manan further submitted that the grounds of arrest were also not
mentioned in the Notice issued to the present petitioner under Section 50 of Cr.
P.C. corresponding to Sections 47 of 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
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mandate of the Constitution of India as well as the statutory provisions which
would vitiate the arrest itself. In this context also, Mr. Manan, learned counsel
for the petitioner, relied on a decision of Hon’ble Supreme Court passed in the
case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine
SC 269.
7. Mr. Manan further relied on another decision of Hon’ble Supreme Court
passed in the case of Directorate of Enforcement Vs. Subhash Sharma,
reported in (2025) SCC Online SC 240, wherein it has been held as under:
“Once a court, while dealing with a bail application, finds that the
fundamental rights of the accused under Articles 21 and 22 of the
Constitution of India have been violated while arresting the accused or
after arresting him, it is the duty of the Court dealing with the bail
application to release the accused on bail. The reason is that the arrest in
such cases stands vitiated. It is the duty of the every Court to uphold the
fundamental rights guaranteed under Articles 21 and 22 of the
Constitution. Therefore, when the arrest is illegal or vitiated, bail cannot
be denied on the grounds of non-fulfillment of twin tests under clause (ii)
of sub-section 1 of Section 45 of PMLA.”
8. Mr. Manan 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 Notice under Section 50 of Cr. P.C. is itself in violation
of Article 22(1) of the Constitution of India and hence, without even going into
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the detail of the merit of the case, the present petitioner is entitled to bail.
9. Ms. Deka, learned counsel appearing on behalf of the NCB, submitted that
the present accused/petitioner was caught red-handed with 153.2 kgs of Ganja,
179 grams of methamphetamine tablets, 1.020 kgs of brown sugar suspected to
be heroin, and 16 bottles of ANREX-CP (codeine), along with other co-accused
persons. She further submitted that it cannot be considered that he is not
involved in the alleged offence, as the recovery was made from the conscious
possession of the accused/petitioner. Accordingly, charges have already been
framed in the present matter, and three witnesses have been examined by the
prosecution. Therefore, she argued that this is not at all a fit case for granting
bail to the accused/petitioner merely on the ground of the length of detention.
10. She also submitted that there may not be any written communication for
grounds of arrest, but from the materials available in the case record, it is very
much evident that the accused was informed about the grounds of arrest orally
during investigation and hence, she raised objection in granting bail to the
accused/ petitioner.
11. Ms. Deka further 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 annexure annexed in the petition,
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. Thus, she raised vehement objection and submitted that
considering the nature and gravity of the offence, it is not at all a fit case to
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enlarge the accused/petitioner on bail at this stage.
12. 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 Notice issued to the present
accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while
issuing the said the Notice, 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 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.
13. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 50 of Cr.P.C., 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.
14. The Hon’ble Apex Court in the case of Prabir Purkayastha Vs. State
(NCT of Delhi), reported in (2024) 8 SCC 254 (supra), has held in paragraph
Nos. 19, 21 & 48 of the judgment as under:
Page No.# 7/12
“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
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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.”
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
Page No.# 9/12provided 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 Notice issued to the present
accused/petitioner under Section 50 of 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 of
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.
Page No.# 10/12
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.”
18. In the same time, it also cannot be denied that the accused/petitioner is
behind the bar for more than 2 (two) years and 6 (six) months from the date of
his arrest and till date, the prosecution could examine only 3 (three) witnesses
out of 12 (twelve) numbers of listed witnesses, and it also cannot be denied
that the prosecution may take considerable time for examining the other
witnesses.
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19. In view of the entire facts and circumstances, as discussed above, viz-a-viz
non-mentioning of grounds of arrest in the Arrest Memo as well as in Notice
issued to the present accused/petitioner under Section 50 of Cr.P.C., and also
considering the period of incarceration already undergone by the
accused/petitioner, i.e. 2 (years) years and 6 (six) months, as well as the
considering the view expressed by the Hon’ble Supreme Court in the case laws
referred to hereinabove, this Court find it a fit case to extend the privilege of
bail to the accused/petitioner.
20. 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, Kamrup Amingaon, Guwahati, the accused/petitioner, namely,
Monirul Islam, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Kamrup Amingaon, 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
before the learned Special Judge, Kamrup Amingaon; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Kamrup Amingaon, without prior permission.
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21. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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