Gauhati High Court
Page No.# 1/12 vs The Union Of India on 3 April, 2025
Page No.# 1/12
GAHC010051652025
2025:GAU-AS:4005
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./768/2025
MADHU RAY
S/O. LATE RAMJEE RAY, R/O. VILLAGE MOUJIPUR, P.O. AND P.S. FATUHA,
DISTRICT PATNA, BIHAR. PIN CODE 803201
VERSUS
THE UNION OF INDIA,
REPRESENTED BY THE STANDING COUNSEL, NCB.
Advocate for the Petitioner : MR. Y S MANNAN, MS R BEGAM,MR. J ALI,MR. T HUSSAIN
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 03-04-2025
Heard Mr. Y.S. Mannan, 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/Union of India.
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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. 43/2023, under Section 8(c) read with Section 20(b)(ii)(C)/29/35/54 of
NDPS Act, arising out of NCB Crime No. 10/2023, pending before the Court of
learned Special Judge, Kamrup, Amingaon.
3. Scanned copy of the case record has already been received. Perused the
same. Heard both sides.
4. It is submitted by Mr. Mannan, learned counsel for the petitioner, that the
present accused/petitioner is arrested on 23.06.2023. He is innocent and
nothing has been seized from his conscious possession. He got arrested in
connection with this case only on the basis of the statement of the co-accused
recorded under Section 67 of NDPS Act. However, it is the settled position that
the statement of the co-accused or the voluntary statement recorded under
Section 67 of the NDPS Act is not admissible at the time of trial or that cannot
be the basis for conviction as 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.
5. Mr. Mannan further submitted that the present accused/ petitioner was
though arrested on 23.06.2024, but he was produced before the Magistrate on
24.06.2024, after 24 hours of arrest, which is in violation of Article 22(2) of the
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Constitution of India, and for last 1 (one) year, 9 (nine) months and 9 (nine)
days, he has been in custody. The charge-sheet was filed on 18.12.2023, but till
date, out of 9 (nine) numbers of witnesses, only 4 (four) witnesses are being
examined by the prosecution and therefore he submitted that considering the
period of long incarceration, the petitioner may be enlarged on bail.
6. In that context, Mr. Mannan 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) Zakirul Islam @ Md Zakirul Islam @ Zakir Vs. The State of Assam [Special Leave
to Appeal (Crl.) No. 3632/2024, dated 15.07.2024]
(iv) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC OnLine SC 352]
(v) Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar [(1980) 1 SCC 81]
(vi) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]
(vii) Chitta Biswas @ Subhas Vs. The State of West Bengal [SLP(Crl.) No. 8823, decided
on 07.02.2022]
(viii) Jarnail Singh Vs. State of Punjab [Special Leave to Appeal (Crl.) No9s).
14867/2024]
(ix) Joydeb Mandal Vs. The Union of India [Bail Appln. No. 627/2025, decided on
19.03.2025]
(x) Anil Yadav Vs. Union of India [Bail Appln. No. 434/2024, decided on 03.12.2024]
7. Mr. Mannan, by filing an additional affidavit, further submitted that the
grounds of arrest were also not mentioned in the Notice issued to the present
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petitioner under Section 50 Cr.P.C./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 further submitted that the accused/petitioner was
arrested on 23.06.2024 and was remanded for judicial custody on 24.06.2024,
but due to non-mentioning of grounds of arrest in the Notice under Section 50
Cr.P.C., the arrest and the remand itself is illegal. 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.
8. In this context, Mr. Mannan relied on the decision of the Hon’ble Apex
Court passed in Criminal Appeal No. 1518/2025, [Ashish Kakkar v. UT of
Chandigarh] wherein it is observed that- “the arrest memo cannot be
construed as grounds of arrest, as no other worthwhile particulars have been
furnished to him. It is further observed that the non-compliance of mandate
under Section 50 of Cr.PC which has been introduced to give effect to Article
22(1) of the Constitution of India, 1950 we are inclined to set aside the
impugned judgment, particularly, in light of the judgment rendered by this Court
reported as Prabir Purkayastha v. State (NCT of Delhi)-(2024) 8 SCC 254 and on
the said observation the arrest of the appellant followed by consequential
remand order are also set aside.”
9. Mr. Mannan 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
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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 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.
10. Ms. Deka, learned counsel appearing on behalf of the respondent/NCB,
submitted in this regard that during investigation, the I.O. collected sufficient
incriminating materials against the present accused/petitioner and as per the
role played by the present accused/petitioner, which is reflected in the Charge-
Sheet, it is seen that he is the facilitator of Ganja and have direct connection
with other accused persons as well as his involvement in the present case. She
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. She 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
was framed on 03.04.2024 and till date, already 4 (four) numbers of witnesses
are being examined by the prosecution and therefore, she 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. 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
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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 relied on a decision of Hon’ble Supreme Court passed in
Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.
[2005 0 Supreme(SC) 104], wherein it is held that ” if a person accused of
offences which are non bailable is liable to be detained in custody during the
pendency of trial unless he is enlarged on bail in accordance with law. Such
detention cannot be question as being violative of Article 21 since the same is
authorized by law.”
12. Ms. Deka further submitted that while dealing with a case of NDPS Act,
the object and purpose of the Act has to be considered and if such kind of
offender is allowed to go on bail, the very purpose and object of the Act itself
will be frustrated. In that context, she also relied on a decision of Hon’ble
Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif,
reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No.
39 of the judgment, which reads as under:
“39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind
the scheme, object and purpose of the Act; as also the impact on the society as
a whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure
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the early disposal of the seized contraband drugs and substances. It was
inserted in 1989 as one of the measures to implement and to give effect to the
International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during the
course of investigation, inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has been caused to
the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither
vitiate the trial nor would entitle the accused to be released on bail. The Court
will have to consider other circumstances and the other primary evidence
collected during the course of investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act.”
13. Accordingly, Ms. Deka 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
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
enlarge the accused/petitioner on bail at this stage.
14. 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
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accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while
issuing the said 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.
15. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to
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.
16. 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
Page No.# 9/12allegation 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 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.”
17. 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
Page No.# 10/12every 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.”
18. 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 her 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.
19. 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
Page No.# 11/12been 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.”
20. In the same time, it also cannot be denied that the accused/petitioner is
behind the bar for more than 1 (one) year, 9 (nine) months and 9 (nine) days
from the date of his arrest and till then, the prosecution has been able to
examine only 4 (four) witnesses out of 9 (nine) numbers of listed witnesses and
it also cannot be denied that to examine the remaining witnesses, the
prosecution may take a considerable period for completion of the trial.
21. 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 Cr.P.C., and also considering the period of
incarceration already undergone by the accused/petitioner, i.e. 1 (one) year, 9
(nine) months and 9 (nine) days, 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.
22. 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, the accused/petitioner, namely, Shri Madhu
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Ray, 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 .
23. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant