Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 25 June, 2025
Page No.# 1/13
GAHC010123422025
2025:GAU-AS:8599
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1907/2025
SHRI SEWA SINGH
S/O- LATE MOHON SINGH.
R/O- VILL.- JANAKPUR BOSTI, BARARA, P.S.- BARARA, DIST.- AMBALA,
STATE- HARYANA.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. P BORDOLOI, MR K J SAIKIA
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/13
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
25.06.2025
Heard Mr. P. Bordoloi, learned counsel for the petitioners. Also heard Ms. S. H.
Borah, 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 arrested in connection with NDPS Case
No. 14/2023, registered under Section 20(b) (ii) (c) of NDPS Act, which is pending
before the Court of the learned Special Judge, NDPS, Karbi Anglong, Diphu.
3. Scanned copy of the case records has already been received and I have perused
the same.
4. It is submitted by Mr. Bordoloi, learned counsel for the petitioner, that the
present accused/petitioner is innocent and nothing has been seized from his conscious
possession. However, he got arrested in connection with this case on 30.10.2022 and
for last 938 days, he is behind the custody. More so, the charge-sheet of the case has
already been filed and till date, out of 7 (seven) numbers of listed witnesses, only 3
(three) witnesses are being examined by the prosecution. 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.
5. In that context, Mr. Bordoloi also relied on following decisions:
(i) Ankur Chaudhary Vs. State of Madhya Pradesh [Special Leave to
Appeal (Crl.) No. 4648/2024]
(ii) Ramlal Vs. State of Rajasthan [Special Leave to Appeal (Crl.)
Page No.# 3/13No(s). 9510/2024]
(iii) Shariful Islam @ Sarif Vs. the State of West Bengal [Special
Leave to Appeal (Crl.) No. 4173/2022]
(iv) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special Leave
to Appeal (Crl.) No(s). 5769/2022]
(v) Manish Sisodia Vs. Directorate of Enforcement [SLP (Criminal)
No. 8772/2024]
6. Apart from the ground of long incarceration, Mr. Bordoloi, learned counsel for the
petitioner, further submitted that admittedly the grounds of arrest were not
communicated to the present accused/petitioner in the Arrest Memo as well as in the
Notice under Section 50/50(A) 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 member should be intimated the grounds
of arrest.
7. In this context, Mr. Bordoloi, learned counsel for the petitioner, also cited the
following decisions of Hon’ble Supreme Court:
(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. He also took the ground that no signatures of the witnesses were obtained at
the time of issuing the Arrest Memo to the present petitioner. In this regard, he relied
on the decision rendered by the Hon’ble Division Bench of the Calcutta High Court in
C.R.M No. 5708 of 2018, wherein, it has been asserted by the Division Bench that ” the
absence of signature of witness in an Arrest Memo is sufficient to discharge the onus
Page No.# 4/13
on the accused to establish that there exist reasonable grounds indicating wrongful
detention in a NDPS Case”.
9. Mr. Bordoloi 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 and the Notices under Sections 50 & 50A, corresponding to Sections 47
& 48 of BNSS, 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. Borah, learned Additional Public Prosecutor, submitted in this regard that out
of 7 (seven) numbers of listed witnesses, already 3 (three) numbers of witnesses are
being 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.
11. 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.
12. Ms. Borah, learned Additional Public Prosecutor, further submitted that the case
of Pankaj Bansal (supra) was passed on 03.10.2023, wherein the Articles 21 & 22(1)
of the Constitution of India was considered and it has the prospective effect. But, here
in the instant case, it is seen that the present accused/petitioner was arrested in
connection with this case on 30.10.2022 and hence, neither the case Pankaj Bansal
Page No.# 5/13
(supra) nor the subsequent observations made by the Hon’ble Supreme Court in cases
of Prabir Purkayastha (supra) & Vihaan Kumar (supra) will be applicable in the
present case.
13. In that context, Ms. Borah also relied on a decision of Hon’ble Supreme Court
passed in Crl. A. No. 3865/2023 (SLP Crl. .No. 12863/2023) (Ram Kishor
Arora Vs. Directorate of Enforcement) and he mainly emphasized on paragraph
No. 23 of the judgment, which reads as under:
“23. As discernible from the judgment in Pankaj Bansal Case also noticing the
inconsistent practice being followed by the officers arresting the persons
under Section 19 of PMLA, directed to furnish the grounds of arrest in writing as
a matter of course, “henceforth”, meaning thereby from the date of the
pronouncement of the judgment. The very use of the word “henceforth” implied
that the said requirement of furnishing grounds of arrest in writing to the
arrested person as soon as after his arrest was not the mandatory or obligatory
till the date of the said judgment. The submission of the learned Senior Counsel
Mr. Singhvi for the Appellant that the said judgment was required to be given
effect retrospectively cannot be accepted when the judgment itself states that it
would be necessary “henceforth” that a copy of such written grounds of arrest
is furnished to the arrested person as a matter of course and without
exception. Hence non furnishing of grounds of arrest in writing till the 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. As such, the action of informing the person
arrested about the grounds of his arrest is a sufficient compliance of Section
19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay
Madanlal (supra).”
14. Accordingly, the learned Additional Public Prosecutor 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
Page No.# 6/13
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, Ms. Borah submitted that the bail
prayer of the present petitioner may be rejected.
15. Ms. Borah also 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.
16. Mr. Bordoloi, learned counsel for the petitioner, submitted in this regard that as
per the F.I.R., it is seen that there was prior information to the Investigating Officer
and hence, it cannot be said that the person caught red handed or the police officer
had no time to serve Notices under Sections 50 & 50A of Cr.P.C., corresponding to
Sections 47 & 48 of BNSS. She further submitted that the Articles 21 & 22 of the
Constitution of India are the inherent right of every person and non-mentioning of
grounds of arrest in the Notices as well as in the Arrest Memo itself is in violation of
Articles 21 & 22(1) of the Constitution of India.
17. In regards to the issue of prospective effect as raised by the learned Additional
Public Prosecutor, it is submitted by Mr. Bordoloi, learned counsel for the petitioner,
that the judgment passed by the Constitutional Court always has the retrospective
effect unless the judgment itself specifically speaks that the judgment will operate
prospectively. In that context, he also relied on a decision of Hon’ble Supreme Court
Page No.# 7/13
passed in Special Leave Petition (Criminal) Nos. 8609-8614 of 2024 (Kanishk
Sinha & Anr. Vs. The State of West Bengal & Anr., 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.”
18. Citing the above referred judgments, Mr. Bordoloi, learned counsel for the
petitioner, submitted that it is fit case wherein the bail can be granted to the present
accused/petitioner basically on 2 (two) grounds, i.e. on non-furnishing of grounds of
arrest as well as the period of long incarceration already undergone by the
accused/petitioner.
19. I have considered the submissions made by the learned counsels for both sides
and also perused the materials available on record as well as the judgments cited by
the learned counsels for both sides.
20. 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 & 50A of
Cr.P.C., corresponding to Sections 47 & 48 of BNSS. From the records, it is seen that
till date, the prosecution could examine only 3 (three) numbers of witnesses out of 7
Page No.# 8/13
(seven) numbers of cited witnesses and in the same time, it is also an admitted fact
that the accused/petitioner is behind the bar for last 938 days. 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, 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.
21. 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.”
22. 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.
Page No.# 9/13
23. 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 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
Page No.# 10/13hand 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.”
24. 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.”
25. 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 Notices issued to the present
Page No.# 11/13
accused/petitioner under Section 50 of Cr.P.C., corresponding to Section 47 of 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 50 of Cr.P.C., corresponding to Section 47 of 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.
26. 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.”
Page No.# 12/13
27. Further, it is also seen that the petitioner is behind the bar for last 938 days and
till date, only 3 (three) witnesses have been examined out of 7 (seven) numbers of
cited witnesses and hence, the probability of completion of trial within near future is
also cannot be expected at this stage.
28. In view of the entire discussions made above, viz-a-viz, considering both the
grounds of long incarceration of 938 days as well as non-furnishing of grounds of
arrest in the Arrest Memo and also in the Notices issued to the present
accused/petitioner and his family members under Section 50 & 50A of Cr.P.C.,
corresponding to Sections 47 & 48 of BNSS, and further considering the observations
made by the Hon’ble Apex Court in the case laws referred to hereinabove, this Court
is of the considered opinion that the petitioner has made out a case for grant of bail
and therefore, I am inclined to grant the privilege of bail to the accused/petitioner.
29. 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, NDPS, Karbi
Anglong, Diphu, the accused, namely, Shri Sewa Singh, be enlarged on bail, subject to
the following conditions:
(i) that the accused shall appear before the Court of learned Special Judge,
NDPS, Karbi Anglong, Diphu, on each and every date to be fixed by the
Court;
(ii) that the accused 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;
Page No.# 13/13
(iii) that the accused shall submit his Aadhar Card and PAN Card before the
learned Special Judge, NDPS, Karbi Anglong, Diphu; and
(iv) that the accused shall not leave the jurisdiction of the learned Special
Judge, NDPS, Karbi Anglong, Diphu, without prior permission.
30. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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