Gauhati High Court
Page No.# 1/12 vs The Union Of India on 26 June, 2025
Page No.# 1/12
GAHC010115682025
2025:GAU-AS:8718
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1823/2025
RATNESH KUMAR
S/O- SHRI RAMPARVESH THAKUR,
VILL.- REPURA SUSTA,
P.O.- DHOLI SAKRA, P.S.- SAKRA,
DIST.- MUZAFFARPUR, BIHAR, PIN- 843119
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SC, NCB
Advocate for the Petitioner : MR. N J DUTTA, B AHMED
Advocate for the Respondent : SC, NCB,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
26.06.2025
Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Ms. M.
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 NDPS
Case No. 201/2022 corresponding to NCB Crime No. 05/2022, registered under
Sections 21(c)/29 of NDPS Act, pending before the Court of learned Additional
Sessions Judge, No. 2, Kamrup (M), Guwahati.
3. The scanned copy of the case record has already been received, and I
have perused the same.
4. It is submitted by Mr. Dutta, learned counsel for the petitioner, that the
accused/petitioner is innocent and that nothing was recovered from his
conscious possession, as alleged in the FIR. The petitioner was arrested on
07.03.2022 in connection with this case and has been in custody since then. He
further submitted that, till date, out of 8 listed witnesses, 5 have been
examined, and P.W.6 has been partly examined. The next date fixed for the
examination of P.W.6 is 22.08.2025. He further submitted that there is no
probability of completion of trial within near future as remaining witnesses are
yet to be examined by the prosecution and hence, considering the period of
long incarceration, the petitioner may be enlarged on bail.
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5. In support of his submission, Mr. Dutta, learned counsel for the petitioner,
further relied on the following decisions:
(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533
(ii) Kabirul Islam & Anr. Vs. The State of West Bengal [SLP(Crl)
No. 12773/2023, decided on 28.02.2024]
(iii) Rased Mia Vs. The State of West Bengal [SLP (Crl) No.
14347/2023, decided on 24.01.2024]
(iv) Dhirendra Kr. Choudhury Vs. The State of Assam, decided
on 14.08.2024]
(v) Zakirul Islam @ Md. Zakirul Islam @ Zakir Vs. The State of
Assam, decided on 15.07.2024]
6. He also raised the issue of non-furnishing of the ground of arrest to the
present accused/petitioner at the time of his arrest and accordingly he
submitted that neither in the Arrest Memo nor in the Notice under Section 50
Cr.P.C., the petitioner was communicated with the grounds of arrest 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.
7. In support of his submissions, Mr. Dutta, learned counsel for the petitioner,
has cited the following decisions:
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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. Dutta 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 of 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.
9. In this regard, Ms. Deka, learned counsel appearing on behalf of the NCB,
has submitted that out of the 8 listed witnesses, 5 have already been examined,
and that P.W.6 has been partly examined and thus, considering the period of
incarceration undergone by the accused/petitioner, it cannot be considered that
there is any violation of Article 21 of the Constitution of India as submitted by
the learned counsel for the petitioner. She further raised the issue that in the
present case, the accused/petitioner was caught red handed along with the
contraband and thus, the ground of his arrest in connection with this case was
well known to the present accused/petitioner.
10. She 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
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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
he is released on bail.
11. Ms. Deka, submitted that the judgment in Pankaj Bansal vs. Union of
India & Ors., reported in (2024) 7 SCC 576, passed by the Division Bench of
the Hon’ble Supreme Court on 03.10.2023, wherein it was considered that
henceforth there should be written communication of the ground of arrest.
Thus, the judgment itself speaks that the judgment is of prospective in nature
wherein the written communication of ground of arrest has to be made to any
accused person after arrested on 03.10.2023. In the case of Ram Kishor
Arora Vs. Directorate of Enforcement, reported in 2023 8 Supreme 514,
also, the Hon’ble Apex Court reiterated the same facts in paragraph No. 23 of
the said judgment, wherein it is expressed the view that ” non-furnishing of
grounds of arrest in writing till 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.”
12. She further submitted that the ratio laid down in Pankaj Bansal (supra)
has also been considered and affirmed by the Hon’ble Supreme Court in Prabir
Purkayastha (supra). In Paragraphs 45 and 51 of the said judgment, the Apex
Court reiterated that the principles enunciated in Pankaj Bansal (supra) would
govern the issue. The said ratio has further been followed in Vihaan Kumar
(supra), wherein a similar view has been expressed. Specifically, in Paragraph 15
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of the judgment in Vihaan Kumar (supra), it has been observed that
“although there is no requirement to communicate the ground of arrest in
writing, what is stated in paragraphs 42 & 43 of the decision in the case of
Pankaj Bansal are suggestion that merit consideration.” Accordingly, it held that
“the police have to balance the rights of a person arrested with the interests of
the society. Therefore, the police should always scrupulously comply with the
requirements of Article 22.”
13. Citing the above referred judgments, Ms. Deka, learned counsel,
submitted that the accused/petitioner is not entitled to be released on bail only
on the ground of non-communication of grounds of arrest in written form.
14. Accordingly, Ms. Deka submitted that the bail prayer of the present
petitioner cannot be considered at this stage on the ground of incarceration as
well as on the ground of non-furnishing of the ground of arrest to the
accused/petitioner. From the facts and circumstances of this case itself, it is
sufficient to hold that the petitioner was well aware about the grounds when he
was caught red handed along with the contraband. Accordingly, she submitted
that the bail prayer of the present petitioner may be rejected.
15. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the other annexures filed along
with the petition. There is no dispute that the accused/petitioner is behind the
bar for more than 3 (three) years in the present case and from the record it is
seen that the ground of arrest was also not communicated to him while issuing
the Notice under Section 50 as well as the Arrest memo. It is also settled
proposition of law that every judgment passed by the Constitutional Court
always has the retrospective effect unless the judgment itself specifically speaks
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that the judgment will operate prospectively. In that context, a decision of
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. can be relied on, 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.”
16. I have perused the materials available on record as well as the judgments
cited by the learned counsels for both sides. From the submissions made by the
learned counsels for both sides, it is seen that basically there are 2 (two) issues
raised in the present case, i.e. the period of long incarceration and non-
communication of grounds of arrest to the present petitioner in the Arrest Memo
as well as in the Notices under Sections 50, corresponding to Sections 47 of
BNSS. It is an admitted fact that the accused/petitioner is behind since
07.03.2022. Further it is also the admitted fact that the grounds of arrest were
not communicated to the petitioner as well as to his relatives in the Notices
under Sections 50 & 50A of Cr.P.C., corresponding to Sections 47 & 48 of BNSS,
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as well as in the Arrest Memo. The Hon’ble Apex Court in the cases of Pankaj
Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar (supra), as
referred above, had discussed in detail in regards to non-communication of the
grounds of arrest to the accused persons and it is considered in various
paragraphs of the judgments that non-compliance of same is in violation of
Article 21 & 22(1) of the Constitution of India.
17. The Hon’ble Supreme Court in the case of Directorate of Enforcement
Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No.
8 of the judgment, has observed that ” 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 every Court to uphold the fundamental
rights guaranteed under Articles 21 and 22 of the Constitution.”
18. So, from the discussion made above, it is seen that as on today, there is
no such distinction made for consideration of bail in cases where the accused
persons were caught red handed or subsequently arrested. But, the Hon’ble
Apex Court in all the cases, as referred above, had expressed the view that non-
furnishing of grounds of arrest to the accused person as well as to his family
members, relatives or friends is in complete violation of mandate of Article 21 &
22(1) of the Constitution of India.
19. In this regard, the learned counsel for the petitioner has relied on the
decision rendered by the Hon’ble Apex Court in the case of Prabir
Purkayastha (supra), and has emphasized paragraphs 19, 21, and 48 of the
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said judgment.
20. 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.”
21. 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
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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.
22. 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.”
23. At the same time, it cannot be denied that the accused/petitioner has
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been behind bar for more than 3 (three) years, and that the prosecution has
examined only 6 [P.W. 6 partly examined] out of the 8 listed witnesses.
24. In the case of Rabi Prakash (supra), as relied by the learned counsel
for the petitioner, the Apex Court has granted bail to the accused with a view
that “the prolonged incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the Constitution and in such a
situation, the conditional liberty must override the statutory embargo created
under Section 37(1)(b)9ii) of the NDPS Act.”
25. Further, in the case of Md. Muslim alias Hussain Vs. State (NCT of
Delhi), reported in 2023 SCC Online SC 352, the Hon’ble Apex Court also
considered the period of incarceration as a relevant factor and granted bail.
26. 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 of Cr.P.C as well as the considering the
period of long incarceration and 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.
27. 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 No.2, Kamrup (M), Guwahati, the accused/petitioner,
namely, Ratnesh Kumar, be enlarged on bail, subject to the following
conditions:
(i) that the petitioner shall appear before the Court of learned
Page No.# 12/12Additional Sessions Judge No.2, Kamrup (M), Guwahati, 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 the Aadhar Card and PAN Card
before the learned Additional Sessions Judge No.2, Kamrup (M); and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional Sessions Judge No.2, Kamrup (M), without prior
permission.
28. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant