Gauhati High Court
Page No.# 1/18 vs The State Of Assam on 5 May, 2025
Page No.# 1/18
GAHC010207732024
2025:GAU-AS:5540
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3043/2024
MD NOOR MOHAMMAD
S/O LATE MD. ISMAIL, R/O VILL- 33, AHIRIPUKUR ROAD, BALLYGUNGE
S.O. KOLKATA, P.S.-KARAYA, DIST- KOLKATA, WEST BENGAL
2: ISMAT PARWEEN
KOLKATA WEST BENGA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MS. S KAUR, MR. N N JHA,L BANIK,N NEOG,MS M SAHOO
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 05.05.2025
Heard Ms. L. Banik, learned counsel for the petitioner. Also heard Mr. R. R.
Kaushik, learned Additional Public Prosecutor for the State respondent.
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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. 28/2023, arising out of Dillai P.S. Case No. 18/2023, under
Section 21(c)/22(c) of the NDPS Act, 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 Ms. Banik, learned counsel for the petitioner, that the
present accused/petitioner got arrested in connection with this case on
13.02.2023 and for last 2 (two) years & 2 (two) months, he is in custody,
though is innocent and nothing has been recovered from his conscious
possession, as alleged in the F.I.R.. The charge-sheet of the case was filed on
30.04.2023 and till date, out of 8 (eight) numbers of listed witnesses, only 4
(four) witnesses are being examined by the prosecution and since last 1 (one)
year, almost on 21 dates, no witnesses turn up which itself is the violation of the
Article 21 of the Constitution of India. Thus, she submitted that considering the
period of long incarceration, the bail prayer for the present petitioner may be
considered at this stage. Further she submitted that the accused/petitioner,
being a permanent resident of his addressed locality, he will appear on each and
every date to be fixed by the learned Special Judge.
5. In that context, Ms. Banik also relied on following decisions:
(i) Ankur Chaudhary Vs. State of Madhya Pradesh [Special
Page No.# 3/18Leave to Appeal (Crl.) No. 4648/2024]
(ii) Ramlal Vs. State of Rajasthan [Special Leave to Appeal (Crl.)
No(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 above submissions, Ms. Banik, learned counsel for the
petitioner, also raised the issue that the grounds of arrest were not mentioned in
the Notice issued to the petitioner under Sections 50 & 50A of Cr.P.C.,
corresponding to Section 47 & 48 of BNSS, 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 while arresting the accused person, he as well as his family members
should be intimated the grounds of arrest.
7. In this context, Ms. Banik, 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
Page No.# 4/18(2024) 8 SCC 254.
8. Ms. Banik 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.
9. Mr. Kaushik, learned Additional Public Prosecutor, submitted in this regard
that the period of detention of 2 (two) years & 2 (two) months cannot be
considered as long incarceration. Further he submitted that out of 8 (eight)
numbers of listed witnesses, already 4 (four) numbers of witnesses are being
examined and thus, the case is also proceeding in a good face and 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 as submitted by the learned counsel for the petitioner.
10. Mr. Kaushik 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. He further submitted that the development of rule,
Page No.# 5/18
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.”
11. Mr. Kaushik, 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.
Page No.# 6/18
12. Mr. Kaushik, learned Additional Public Prosecutor, further submitted that
the case of Pankaj Bansal (supra) was passed on 14.02.2023, 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 13.02.2023 and
hence, neither the case Pankaj Bansal (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, Mr. Kaushik 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).”
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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 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. Kaushik submitted that the bail prayer of the present petitioner
may be rejected.
15. Mr. Kaushik 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, 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.
16. Ms. Banik, 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
Page No.# 8/18
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. Ms. Banik 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. In this context, she also relied on a
decision of Hon’ble Supreme Court passed in Joginder Kumar Vs. State of
Uttar Pradesh, reported in (1994) 4 SCC 260, wherein in paragraph No. 21
of the judgment, it has been observed by the Hon’ble Supreme Court that the
rights under Articles 21 & 22 (1) of the Constitution of India are the inherent
right of a person and there cannot be any violation of those Articles at the time
of arrest of any person.
17. Ms. Banik, learned counsel for the petitioner, further relied on another
decision of Hon’ble Supreme Court passed in the case of Jaseela Shaji Vs.
Union of India & Ors., reported in (2024) 9 SCC 53 and basically relied on
paragraph Nos. 20, 25 & 72 of the judgment, which read as under:
“20. It is immaterial whether the detenu already knew about their contents or not.
In Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709: 1981 SCC (Cri) 592] it was
held that the fact that the detenu was aware of the contents of the documents not
furnished was immaterial and non-furnishing of the copy of the seizure list was held to
be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and
has no access to his own documents. In Mohd. Zakir v. Delhi Administration [(1982) 3
SCC 216: 1982 SCC (Cri) 695] it was reiterated that it being a constitutional imperative
for the detaining authority to give the documents relied on and referred to in the order
of detention pari passu the grounds of detention, those should be furnished at the
earliest so that the detenu could make an effective representation immediately instead
of waiting for the documents to be supplied with. The question of demanding the
documents was wholly irrelevant and the infirmity in that regard was violative of
constitutional safeguards enshrined in Article 22(5).”
25. This Court further went on to hold that it is immaterial whether the detenu already
knew about their contents or not. This Court reiterated the position that it being a
Page No.# 9/18
constitutional imperative for the detaining authority to give the documents relied on
and referred to in the order of detention pari passu the grounds of detention. It has
been held that there is no question of demanding the documents.
72. We may only reiterate what has been laid down in the earlier judgments of this
Court that the Prison Authorities should ensure that the representations are sent to the
Competent Authorities immediately after the receipt thereof. In the present era of
technological development, the said representation can be sent through email within a
day. It is further needless to reiterate that the Competent Authority should decide such
representation with utmost expedition so that the valuable right guaranteed to the
detenu under Article 22(5) of the Constitution is not denied. In the matters pertaining
to personal liberty of the citizens, the Authorities are enjoined with a constitutional
obligation to decide the representation with utmost expedition. Each day’s delay
matters in such a case.”
18. In regards to the issue of prospective effect as raised by the learned
Additional Public Prosecutor, it is submitted by Ms. Banik, 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, she also relied on 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., 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.”
19. Citing the above referred judgments, Ms. Banik, learned counsel for the
petitioner, submitted that it is fit case wherein the bail can be granted to the
Page No.# 10/18
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.
20. Ms. Banik also submitted that the issue of “caught red handed” is still
pending before the Hon’ble Apex 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.), which is already reserved by the Hon’ble Supreme Court for
pronouncement of judgment, however the Hon’ble Supreme Court had already
released the accused persons on interim bail till disposal of the said appeal.
21. 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.
22. 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 4 (four)
numbers of witnesses out of 8 (eight) 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 more than 2 (two) years & 2 (two) months. Further it is also the
Page No.# 11/18
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.
23. 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:
“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
Page No.# 12/18pleadings, 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.”
24. 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.”
25. 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.”
26. Further, 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
Page No.# 13/18
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, a decision of Hon’ble Supreme Court can be relied on which was reported
in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and
Kashmir National Conference), wherein in paragraph No. 35 of the
judgment, it has been held 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.”
27. 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.
28. 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,
Page No.# 14/18
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
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.”
29. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court
has held has under:
Page No.# 15/18
“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.”
30. 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 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
Page No.# 16/18
commercial quantity under the NDPS Act.
31. 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.”
32. Further, it is also seen that the petitioner is behind the bar for last more
than 2 (two) years & 2 (two) months and till date, only 4 (four) witnesses have
been examined out of 8 (eight) numbers of cited witnesses and hence, the
probability of completion of trial within near future is also cannot be expected at
this stage.
33. In view of the entire discussions made above, viz-a-viz, considering both
the grounds of long incarceration of 2 (two) years & 2 (two) months as well as
non-furnishing of grounds of arrest in the Arrest Memo and also in the Notices
Page No.# 17/18
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.
34. 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, Karbi Anglong, Diphu, the accused, namely, Md. Noor
Mohammad, be enlarged on bail, subject to the following conditions:
(i) that the accused shall appear before the Court of learned Special
Judge, 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;
(iii) that the accused shall submit his Aadhar Card and PAN Card before
the learned Special Judge, Karbi Anglong, Diphu; and
Page No.# 18/18
(iv) that the accused shall not leave the jurisdiction of the learned
Special Judge, Karbi Anglong, Diphu, without prior permission.
35. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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