Gauhati High Court
Page No.# 1/6 vs Union Of India on 11 June, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/6
GAHC010061752025
2025:GAU-AS:7567
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./892/2025
ARUN SHARMA
S/O- LATE RAM ASHISH SHARMA, R/O- HINDU CHAKIA MAHAMAYA
ASTHA, PS EAST CHAMPARA, DIST- EAST CHAMPARA, BIHAR
VERSUS
UNION OF INDIA
TO BE REP BY THE NCB, GUWAHATI ZONAL UNIT, GUWAHATI.
Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY
Advocate for the Respondent : SC, NCB,
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
11.06.2025
Heard Mr. A. Ahmed, the learned counsel appearing for the petitioner. Also
heard Mr. S.C. Keyal, the learned Standing Counsel, NCB.
2. This is an application under Section 483 of the BNSS, 2023 whereby the
petitioner Arun Sharma has prayed for releasing him on bail as he is facing trial in
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NDPS Case No.222/2021 arising out of NCB Guwahati Crime No.13 & 13A/2021
pending in the court of learned Addl. Sessions Judge No.2, Kamrup(M) at Guwahati.
3. The petitioner is shown as arrested in this case while he was in custody in
another case. The petitioner has claimed that the provision of law as contained in
Sections 47 and 48 of the BNSS, 2023 were not complied with at the time of his arrest
in this case.
4. Mr. Keyal has submitted that the petitioner was arrested on the basis of a
Production Warrant issued by the Addl. Sessions Judge No.2, Kamrup(M), Guwahati.
According to Mr. Keyal, the issue of Production Warrant is the compliance of Sections
47 and 48 of the BNSS, 2023. Mr. Keyal has relied upon a judgment of the Hon’ble
Supreme Court dated 23rd May 2025 delivered in Kashireddy Upender Reddy v State
of Andhra Pradesh — Criminal Appeal No. 2808 of 2025 @ SLP (Criminal) No. 7746 of
2025. Paragraph 36 of the said judgment is quoted as under:
“36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the
warrant itself; if the warrant is read over to him, that is sufficient compliance with the
requirement that he should be informed of the grounds for his arrest. If he is arrested
without a warrant, he must be told why he has been arrested. If he is arrested for
committing an offence, he must be told that he has committed a certain offence for
which he would be placed on trial. In order to inform him that he has committed a
certain offence, he must be told of the acts done by him which amounts to the
offence. He must be informed of the precise acts done by him for which he would be
tried; informing him merely of the law applicable to such acts would not be enough.
(See: Vimal Kishore Mehrotra (supra))”
5. Mr. Ahmed has pointed out that the law laid down by the Supreme Court in the
said judgment would be applicable if the petitioner was arrested on the basis of a
warrant of arrest. According to Mr. Ahmed, the said judgment of the Supreme Court is
not applicable in the present case because the petitioner was shown as arrested on
the basis of the Production Warrant issued by the learned Addl. Sessions Judge. Mr.
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Ahmed has submitted that there is a difference between a warrant of arrest and the
Production Warrant.
6. I have given my anxious considerations to the submissions made by the learned
counsel of both sides.
7. In Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, the Hon’ble
Supreme Court has held 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 committed at the
time of arresting the accused and the grant of initial police custody remand to the
accused.
28. The language used in Article 22(1) and Article 22(5) of the Constitution of India
regarding the communication of the grounds is exactly the identical. Neither of the
constitutional provisions require that the “grounds” of “arrest” or “detention”, as the
case may be, must be communicated in writing. Thus, interpretation to this important
facet of the fundamental right as made by the Constitution Bench while examining the
scope of Article 22(5) of the Constitution of India would ipso facto apply to Article
22(1) of the Constitution of India insofar as the requirement to communicate the
grounds of arrest is concerned.
29. Hence, we have no hesitation in reiterating that the requirement to communicate
the grounds of arrest or the grounds of detention in writing to a person arrested in
connection with an offence or a person placed under preventive detention as provided
under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be
breached under any situation. Non-compliance of this constitutional requirement and
statutory mandate would lead to the custody or the detention being rendered illegal,
as the case may be.
37. The interpretation given by the learned Single Judge that the grounds of arrest
Page No.# 4/6were conveyed to the accused in writing vide the arrest memo is unacceptable on the
face of the record because the arrest memo does not indicate the grounds of arrest
being incorporated in the said document. Column 9 of the arrest memo (Annexure P-7)
which is being reproduced hereinbelow simply sets out the “reasons for arrest” which
are formal in nature and can be generally attributed to any person arrested on
accusation of an offence whereas the “grounds of arrest” would be personal in nature
and specific to the person arrested.
“9. Reason for arrest
(a) Prevent the accused person from committing any further offence.
(b) For proper investigation of the offence.
(c) To prevent the accused person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner.
(d) To prevent such person from making 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 the police officer.
(e) As unless such person is arrested, his presence in the court whenever required
cannot be ensured.”
45. We are of the firm opinion that once this Court has interpreted the provisions of
the statute in context to the constitutional scheme and has laid down that the grounds
of arrest have to be conveyed to the accused in writing expeditiously, the said ratio
becomes the law of the land binding on all the courts in the country by virtue of Article
141 of the Constitution of India.
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
tampering 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.”
8. In Vihaan Kumar … Appellant Versus State of Haryana and Another , 2025 SCC
OnLine SC 269, the Supreme Court has held as under:
“14. Thus, the requirement of informing the person arrested of the grounds of arrest
Page No.# 5/6is 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.
3. 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, is 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. Therefore, the purpose of communicating the grounds
of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a
formality but to enable the detained person to know the reasons for his arrest but also to
provide the necessary opportunity to him through his relatives, friends or nominated persons
to secure his release at the earliest possible opportunity for actualising the fundamental right
to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement
Page No.# 6/6of communicating the grounds of arrest in writing is not only to the arrested person, but also
to the friends, relatives or such other person as may be disclosed or nominated by the arrested
person, so as to make the mandate of Article 22(1) of the Constitution meaningful and
effective failing which, such arrest may be rendered illegal.”
9. In Directorate of Enforcement … Versus Subhash Sharma 2025 SCC OnLine SC
240, the Apex Court has held as under:
“8. 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.”
10. Coming back to the case in hand, when a person is shown arrested in a case
while he was in detention in another case, it is a fresh arrest. Therefore, the
compliance of Article 22 of the Constitution of India and the provisions of law as laid
down in Sections 47 & 48 of the BNSS, 23023, is mandatory. In this case, no such
notice was given to the petitioner before he was shown as arrested in this case.
Therefore, the arrest of the present petitioner is bad in law.
11. The bail application is allowed. The petitioner Arun Sharma who is facing trial in
NDPS Case No.222/2021 arising out of NCB Guwahati Crime No.13 & 13A/2021
pending in the court of learned Addl. Sessions Judge No.2, Kamrup(M) at Guwahati,
shall be allowed to go on bail of ₹50,000/- with a surety of like amount to the
satisfaction of the said court i.e. Addl. Sessions Judge No.2, Kamrup(M), Guwahati.
With the aforesaid direction, the bail application is disposed of.
JUDGE
Comparing Assistant