Gauhati High Court
Page No.# 1/16 vs The State Of Assam on 14 May, 2025
Page No.# 1/16
GAHC010034842025
2025:GAU-AS:5937
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./480/2025
MD ELIYAS KHAN,
SON OF MD. SAMSER ALI, RESIDENT OF KWAKTA, KHUMAN WARD NO. 4
POLICE STATION MOIRANG DISTRICT- BISHNUPUR, MANIPUR.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. Y S MANNAN, MS. N.A. BEGUM,MR. S MUNIR
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 14.05.2025
Heard Mr. Y. S. Mannan, learned counsel for the petitioner. Also heard Mr.
M. P. Goswami, learned Additional Public Prosecutor for the State respondent.
Page No.# 2/16
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. 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. Mannan, learned counsel for the petitioner, that the
present accused/petitioner is innocent and nothing has been seized from his
conscious possession. He was the driver of the vehicle 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, 5 (five) months & 29 (twenty nine) days,
he is 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. 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. Mannan also relied on following decisions:
(i) Shariful Islam @ Sarif Vs. the State of West Bengal [Special
Leave to Appeal (Crl.) No. 4173/2022]
Page No.# 3/16
(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]
(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]
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6. Apart from the ground of long incarceration, Mr. Mannan, learned counsel
for the petitioner, by filing additional affidavit, 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 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. In this context, Mr. Mannan, 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. Mr. Mannan, learned counsel for the petitioner, further submitted that in
the cases of Pankaj Bansal Vs. Union of India, reported in (2024) 7 SCC
576, Prabir Purkayastha (supra), and Vihaan Kumar (supra), the Hon’ble
Supreme Court did not make any distinction as to whether the petitioner caught
“red handed” or he was subsequently arrested in connection with the cases. The
only observation made by the Hon’ble Supreme Court is that the accused is
entitled to bail whenever there is any violation of Articles 21 & 22(1) of
Constitution of India for non-compliance of the provision of Sections 47 & 48 of
BNSS, corresponding to Sections 50 & 50A of Cr.P.C. He further submitted that
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the issue of “red handed” is still pending before the Hon’ble Supreme Court in
Special Leave to Appeal (Crl.) No(s). 17132/2024, arising out of
impugned final judgment and order dated 25.11.2024 in CRWP No.
3533 passed by the High Court of Judicature at Bomay (Mihir Rajesh
Shah Vs. The State of Maharashtra & Anr.). However, in said case, the
Hon’ble Apex Court had granted interim bail to the accused persons considering
the violation of Articles 21 & 22(1) of the Constitution of India.
9. Mr. Mannan, learned counsel for the petitioner, further submitted that it is
a settled proposition of law that the High Courts or the Subordinate Courts
should decide the matters on the basis of law as it stands and unless specifically
directed by the Hon’ble Supreme Court to await an outcome of a reference or
review petition as the case may be. In that context also, he relied on a decision
of Hon’ble Supreme Court passed in the case of Union Territory of Ladakh
Vs. Jammu and Kashmir National Conference, reported in 2023 SCC
OnLine SC 114, and emphasized on paragraph No. 35 of the judgment, which
reads as under:
“35. We are seeing before us judgments and orders by High Courts not deciding cases
on the ground that the leading judgment of this Court on this subject is either referred
to a larger Bench or a review petition relating thereto is pending. We have also come
across examples of High Courts refusing deference to judgments of this Court on the
score that a later Coordinate Bench has doubted its correctness. In this regard, we lay
down the position in law. We make it absolutely clear that the High Courts will proceed
to decide matters on the basis of the law as it stands. It is not open, unless specifically
directed by this Court, to await an outcome of a reference or a review petition, as the
case may be. It is also not open to a High Court to refuse to follow a judgment by
stating that it has been doubted by a later Coordinate Bench. In any case, when faced
with conflicting judgments by Benches of equal strength of this Court, it is the earlier
one which is to be followed by the High Courts, as held by a 5-Judge Bench in National
Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of
course, will do so with careful regard to the facts and circumstances of the case before
it.”
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10. Mr. Mannan also relied on another decision of Hon’ble Supreme Court
which was reported in 2025 SCC OnLine 240 (Directorate of Enforcement
Vs. Subhash Sharma) and emphasized on paragraph No. 8 of the judgment,
wherein it has been observed by the Hon”ble Apex Court 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.”
11. Accordingly, Mr. Mannan, learned counsel for the petitioner, submitted that
it is a 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.
12. 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
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.
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13. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard
that the period of detention of 1 (one) year, 5 (five) months & 29 (twenty nine)
days cannot be considered as long incarceration. Further he submitted that the
trial has already commenced and thus, only 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. More so, he
submitted that the accused/petitioner belongs from the State of Manipur and
there is every probability of absconding or evading trial if he is enlarged on bail.
14. Mr. Goswami 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. More so, the grounds of arrest are already
mentioned in the Forwarding Report. He further submitted that the development
of rule, i.e. no person shall be detained without being informed the ground of
arrest, has developed from the case of Christie & Anr. Vs. Leachinsky (1947
1 ALL ER 567). He further submitted that the case of Madhu Limaye Vs.
State of Maharashtra, reported in AIR 1969 SC 1014, is the first reported
case regarding the furnishing of grounds of arrest and violation of Article 22(1)
of the Constitution of India, wherein also, the Hon’ble Supreme Court has
referred the decision of Viscount Simon in Christie (supra). He accordingly
submitted that in case of Madhu Limaye (supra), the following observation
was made:
“there is no need to explain the reasons of arrest if the arrested man is
caught red-handed and the crime is patent to high Heaven.”
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15. Mr. Goswami, learned Additional Public Prosecutor, further submitted that
the mentioning of grounds of arrest in case of a person caught red handed was
never argued before the Hon’ble Supreme Court nor was pursued or considered
by the Hon’ble Supreme Court while passing the judgments in cases of Pankaj
Bansal Vs. Union of India, reported in (2024) 7 SCC 576; Prabir
Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; and
Vihaan Kumar Vs. State of Haryana & Anr., reported in 2025 SCC OnLine
SC 269. In those cases, the Hon’ble Supreme Court has passed the judgments
without considering the issue of necessity of informing the grounds of arrest to
a person caught red handed and thus, applying the “doctrine of sub-silentio” it
can be very well said that the judgments passed by the Hon’ble Supreme Court
in Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar
(supra) are not a precedent so far the cases where the accused person got
arrested red handed.
16. 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 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, Mr. Goswami submitted that the bail prayer of the present petitioner
may be rejected.
17. Mr. Goswami also submitted that the case is of commercial in nature and
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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, 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.
18. Mr. Mannan, learned counsel for the petitioners, 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 persons caught red
handed or the police officer had no time to serve Notice under Sections 50 of
Cr.P.C. He 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 Notice as well as in the Arrest Memo itself is in violation of Articles 21 &
22(1) of the Constitution of India. Mr. Mannan further submitted that in the case
of Madhu Limaye (supra) though it was discussed about the issue of red
handed, but the accused was enlarged on bail by the Hon’ble Supreme Court
considering the fact of violation of Article 22(1) of the Constitution of India.
Accordingly, Mr. Mannan, learned counsel for the petitioner, submitted that it is a
fit case wherein the bail can be granted to the present accused/petitioner on the
ground of non-furnishing of grounds of arrest to him in the Arrest Memo as well
as in the Notice under Section 50 of Cr.P.C.
Page No.# 10/16
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 petitioners in the Arrest Memo as well as in the Notice under Section 50
of Cr.P.C. It is an admitted fact that the grounds of arrest were not
communicated to the petitioner as well as to his relatives in the Notice Section
50 of Cr.P.C., 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. Further it is a fact that in the judgments, referred to hereinabove, the
Hon’ble Supreme Court had not discussed the issue of caught red handed and
no distinction was made in those judgments in regards to the arrest of the
accused person. But, in paragraph No. 31 of the judgment of Vihaan Kumar
(supra), the Hon’ble Supreme Court has held that all Courts, including the High
Court, have a duty to uphold fundamental rights. Once a violation of a
fundamental right under Article 22(1) was alleged, it was the duty of the High
Court to go into the said contention and decide in one way or the other. For
ready reference, paragraph No. 31 of the said judgment read as under:
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“31. The learned Single Judge, unfortunately, has equated information given regarding
the appellant’s arrest with the grounds of arrest. The observation that the allegation of
non- supply of the grounds of arrest made by the appellant is a bald allegation is
completely uncalled for. All courts, including the High Court, have a duty to uphold
fundamental rights. Once a violation of a fundamental right under Article 22(1) was
alleged, it was the duty of the High Court to go into the said contention and decide in
one way or the other. When a violation of Article 22(1) is alleged with respect to
grounds of arrest, there can be possible two contentions raised: (a) that the arrested
person was not informed of the grounds of arrest, or (b) purported information of
grounds of arrest does not contain any ground of arrest. As far as the first contention
is concerned, the person who is arrested can discharge his burden by simply alleging
that grounds of arrest were not informed to him. If such an allegation is made in the
pleadings, the entire burden is on the arresting agency or the State to satisfy the court
that effective compliance was made with the requirement of Article 22(1). Therefore,
the view taken by the High Court is completely erroneous.”
22. In the 2nd part of the judgment of Vihaan Kumar (supra), it is also been
observed by the Hon’ble Apex Court that “the purpose of inserting Section 50A
of the CrPC, making it obligatory on the person making arrest to inform about
the arrest to the friends, relatives or persons nominated by the arrested person
it to ensure that they would able to take immediate and prompt actions to
secure the release of the arrested person as permissible under the law. The
arrested person, because of his detention, may not have immediate and easy
access to the legal process for securing his release, which would otherwise be
available to the friends, relatives and such nominated persons by way of
engaging lawyers, briefing them to secure release of the detained person on
bail at the earliest.”
23. 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
Page No.# 12/16
members, relatives or friends is in complete violation of mandate of Article 21 &
22(1) of the Constitution of India.
24. 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 hand of the Investigating Officer which necessitated the arrest of the
accused. Simultaneously, the grounds of arrest informed in writing must convey to the
Page No.# 13/16arrested 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.”
25. 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.”
26. 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 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
Page No.# 14/16
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.
27. 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.”
28. 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 case is still
under investigation. However, considering the fact that the grounds of arrest
were not communicated to the petitioner or mentioned in the Arrest Memo as
Page No.# 15/16
well as in the Notice issued to the present accused/petitioner under Section 50
of Cr.P.C., this Court find it a fit case to extend 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 each 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,
Md. Eliyas Khan, 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
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, Diphu, Karbi Anglong; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Diphu, Karbi Anglong, without prior permission.
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30. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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