Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 16 July, 2025
Page No.# 1/5
GAHC010138682025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2064/2025
SALMA BEGUM AND 3 ORS
W/O LATE ABDUL BAREK
R/O DIMAPUR NEAR MIYA COLONY
P.S. EAST DIMAPUR
DIST. DIMAPUR, NAGALAND.
2: SMTI. DANMAYA CHETRY
C/O SMTI. DEEPA CHETRY
R/O DIMAPUR EAST COLONY
P.S. EAST DIMAPUR
DIST. DIMAPUR
NAGALAND.
3: SMTI. KUMARI CHETRY
W/O SRI BIR BAHADUR CHETRY
R/O DIMAPUR DEJAFER NEAR GOVT. BETHEL AG SCHOOL
P.S. EAST DIMAPUR
DIST. DIMAPUR
NAGALAND.
4: SRI TULEN HAZARIKA
S/O LATE TANGKESWAR HAZARIKA
R/O BORDIRAK NEAR GOHORAGORI TINIALI
P.S. KAKOPATHAR
DIST. TINSUKIA
ASSA
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
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Advocate for the Petitioner : MR. N HASAN, MR. A HASAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
ORDER
16.07.2025
Heard Mr. N. Hasan, learned counsel for the accused persons and also heard Mr. P.
Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State
respondent.
2. This bail application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023 is preferred by four accused, namely, Salma Begum, Danmaya Chetry,
Kumari Chetry and Tulen Hazarika, who are languishing in jail hazot since 01.12.2022, in
connection with NDPS Case No.18(T)/2023, under Section 21(c)/29 of the NDPS Act, for
grant of bail.
3. Mr. Hasan, learned counsel for the accused persons submits that this is the second
bail application preferred by the accused persons on the ground that while effecting arrest
of the accused persons, the Investigating Officer had not communicated the ground of
arrest to the accused persons. To buttress his submission, Mr. Hasan has referred to
Annexure-7 series, the Memo of Arrest and the Inspection Memo, at page Nos.46–49,
and Annexure-8 series, the Notice under Section 50 Cr.P.C. at page Nos.50–53, and also
Annexure-9, the notice under Section 50A Cr.P.C., at page No.54 of the petition. Mr. Hasan
further submits that since the ground of arrest has not been communicated to the
accused persons at the time of arrest, the same has violated the mandate of Article 22(1)
of the Constitution of India and also the decisions of Hon’ble Supreme Court in the cases
of Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254
and Vihaan Kumar v. State of Haryana & Anr., reported in 2025 SCC OnLine SC
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269 and therefore, Mr. Hasan submits that the accused persons may be released on bail.
4. Per contra, Mr. P. Borthakur, learned Additional Public Prosecutor has fairly submits
that going through the Annexure, from page Nos.46 to 54, it cannot be said that the I.O.
has communicated the ground of arrest of the accused persons. However, Mr. Borthakur
has referred to a decision of the learned Trial Court dated 03.06.2025, annexed with the
application at Annexure-10, at page No.55, submits that the learned Trial Court after
giving detail reason, had dismissed the bail petition preferred by the accused persons on
the ground of non-communication of the ground of arrest to the accused persons and as
such, Mr. Borthakur has opposed the petition.
5. Having heard the submission of learned counsel for both the parties, I have
carefully gone through the petition and the documents placed on record and also perused
the Annexure, at Page Nos.46–55 annexed with the petition. And also gone through the
decision of Hon’ble Supreme Court in the case of Prabir Purkayastha (supra) and
Vihaan Kumar (supra).
6. It is to be noted here that while dealing with the issue of communication of ground
of arrest to the accused, in the case of Vihaan Kumar (supra), Hon’ble Supreme Court
has held as under:-
“21. Therefore, we conclude:-
a) The requirement of informing a person arrested of grounds
of arrest is a mandatory requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to
the arrested person in such a manner that sufficient
knowledge of the basic facts constituting the grounds is
imparted and communicated to the arrested person effectively
in the language which he understands. The mode and method of
communication must be such that the object of the
constitutional safeguard is achieved;
c) When arrested accused alleges non-compliance with the
Page No.# 4/5requirements of Article 22(1), the burden will always be on
the Investigating Officer/Agency to prove compliance with
the requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the
fundamental rights of the accused guaranteed by the said
Article. Moreover, it will amount to a violation of the
right to personal liberty guaranteed by Article 21 of the
Constitution. Therefore, non-compliance with the
requirements of Article 22(1) vitiates the arrest of the
accused. Hence, further orders passed by a criminal court of
remand are also vitiated. Needless to add that it will not
vitiate the investigation, charge sheet and trial. But, at
the same time, filing of charge sheet will not validate a
breach of constitutional mandate under Article 22(1);
e) When an arrested person is produced before a Judicial
Magistrate for remand, it is the duty of the Magistrate to
ascertain whether compliance with Article 22(1) and other
mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the
duty of the court to forthwith order the release of the
accused. That will be a ground to grant bail even if
statutory restrictions on the grant of bail exist. The
statutory restrictions do not affect the power of the court
to grant bail when the violation of Articles 21 and 22 of the
Constitution is established.”
7. Same proposition of law is laid down in the case of Prabir Purkayastha
(supra), also.
8. In the instant case, having perused the Notice issued to the accused persons under
Section 50 of Cr.P.C., and the Memo of Arrest and Inspection Memo of the accused
persons, this Court is unable to derive satisfaction that the I.O., while effecting arrest of
the accused persons had ever communicated the ground of arrest to them. And as such,
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the right guaranteed under Article 22(1) of the Constitution of India and also the mandate
of the Hon’ble Supreme Court in the cases of Prabir Purkayastha (supra) and
Vihaan Kumar (supra), is violated in respect of the accused persons and thereby
rendering their arrest illegal and contrary to the provision of law.
9. It is a fact that the accused herein this case were arrested under Sections
21(c)/29 of the NDPS Act. Indisputably, the quantity of contraband substances so
recovered from their possession was commercial quantity. And as such, there is a
requirement of satisfying the twin conditions of Section 37 of the NDPS Act. But, in
the case of Vihaan Kumar (supra), it has been held that when a violation of Article
22(1) is established, it is the duty of the Court to forthwith order the release of the
accused and that will be a ground to grant bail even if statutory restrictions
on the grant of bail exist. The statutory restrictions do not affect the power of
the Court to grant bail when the violation of Articles 21 and 22 of the Constitution is
established.
10. Accordingly, it is provided that on furnishing a bail bond of `50,000/- each, with
one surety of like amount to the satisfaction of the learned Trial Court, all the accused
persons, namely, Salma Begum, Danmaya Chetry, Kumari Chetry and Tulen
Hazarika, shall be enlarged on bail.
11. It is further provided that the learned trial Court shall be at liberty to impose
any other condition so as to ensure appearance of the accused persons during the
course of trial.
12. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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