Gauhati High Court
Page No.# 1/7 vs The State Of Assam on 14 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/7
GAHC010074742025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1101/2025
NUR MAHAMMAD ALI @ BABUL ALI AND 3 ORS.
S/O GOFUR ALI, VILLAGE UKHURA PANIKHAITI RESERVE, P.S HAJO,
DISTRICT KAMRUP, ASSAM
2: JILIMA BEGUM
W/O NUR MAHAMMAD ALI @ BABUL ALI
VILLAGE UKHURA PANIKHAITI RESERVE
P.S HAJO
DISTRICT KAMRUP
ASSAM
3: SAJINA BEGUM
W/O JAKIR ALI
VILLAGE UKHURA PANIKHAITI RESERVE
P.S HAJO
DISTRICT KAMRUP
ASSAM
4: JAKIR ALI
S/O ISLAM ALI
VILLAGE UKHURA PANIKHAITI RESERVE
P.S HAJO
DISTRICT KAMRUP
ASSA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. A AHMED, U U KHAN,MR A AHMED,MR. M A
CHOUDHURY
Page No.# 2/7
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 14.05.2025
Heard Mr. M. Ahmed, learned counsel for the petitioners as well as Mr. K.
Baishya, learned Additional Public Prosecutor for the State.
2. By filing this application U/S 483 of the BNSS, 2023, the petitioners,
namely, (1) Nur Mahammad Ali @ Babul Ali (2) Jilima Begum (3) Sajina
Begum (4) Jakir Ali, have sought for bail in connection with NDPS Case No.
94/2024 (arising out of Hajo P.S. Case No. 181/2024) under Section
20(C)/29/31 of NDPS Act, 1985, pending in the Court of learned Special Judge,
Kamrup, Amingaon, Assam.
3. The factual matrix leading to this bail application is that on 29.05.2024, on
the basis of a secret information, the police personnel of Hajo police station,
went to the house of Babul Ali @ Saru and Jakir Ali. Thereafter, following the
due procedure, searched the house of accused Babul Ali and found 4(four) nos.
of white colour polythene bags kept concealed inside a bathroom and recovered
suspected ganja weighing about 20.150 kgs. Then, the police personnel
proceeded towards the residence of Jakir Ali and after following due procedure,
search was conducted and found 4(four) nos. of white colour polythene bags
kept concealed inside the kitchen and recovered suspected ganja weighing
about 20.100 kgs. Accordingly, a case was registered and subsequently accused
petitioners were arrested.
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4. It is submitted by the learned counsel for the petitioner that the petitioner
Nos. 2 and 3 have been languishing in judicial custody since their arrest on
29.05.2024 and the petitioner Nos. 1 and 4 have been languishing in judicial
custody since their arrest on 19.08.2024. It is also submitted by the learned
counsel for the petitioners that after completion of investigation, charge sheet
was filed by the police vide C.S. No. 314/2024 dated 22.11.2024. It is further
submitted that on 09.01.2025, charge has been framed against the
accused/petitioners but no witness is examined till date.
5. It is further submitted by the learned counsel for the petitioners that they
have been falsely implicated in this case and they are no way involved in the
instant case. The main thrust of argument for the learned counsel for the
petitioners is that no grounds of arrest was communicated to the petitioners in
the notice served on them U/S 50 Cr.P.C. (U/S 47 BNSS) which are mandatory in
nature, thereby violating the mandates of Article 21/22 of the Constitution of
India. Hence, the petitioners are entitled for bail.
6. Per contra, Mr. Baishya, learned Additional Public Prosecutor for the State
has submitted that commercial quantity of contraband items were recovered
from the conscious possession of the petitioners. As the commercial quantity of
contraband items are involved in the instant case as such, the embargo under
Section 37 of NDPS Act will come into play. Hence, the Additional Public
Prosecutor has opposed in granting bail to the petitioners. However, learned
Additional Public Prosecutor has admitted that the grounds of arrest have not
been mentioned in the arrest memo or the Section 50 notice issued to the
petitioners.
7. Having heard the learned counsel for the parties, it is not in dispute that the
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notice served to the petitioners u/s 50 Cr.P.C. as well as arrest memo show that
no grounds of arrest have been communicated to the petitioners at the time of
their arrest.
8. In the case of Pankaj Bansal Vs Union of India, reported in (2023) SCC
Online (SC) 1244, the Hon’ble Supreme Court has held that the written grounds
of arrest must be furnished to the arrested person as a matter of course and
without exception. If the same is not complied with, the arrest would be in
violation of Section 19(1) of the PMLA Act, 2002. Consequently, the arrest and
the subsequent remand of the arrested person cannot be sustained.
9. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi)
reported in 2024 SCC Online SC 934 , wherein it has been categorically held
that the law laid down in the case of Pankaj Bansal (supra) would be squarely
applicable in cases under the UA (P) Act or for that matter any other offences.
The accused has fundamental and 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 and non-supply of written grounds of arrest to the arrested
person would vitiate the arrest even if the case has been charge-sheeted.
10. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs.
Subhash Sharma, it was held as follows-
“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
Page No.# 5/7such cases stands vitiated. It is the duty of every Court to uphold the
fundamental rights guaranteed under Articles 21 and 22 of the
Constitution. Therefore, when arrest is illegal or vitiated, bail cannot be
denied on the grounds of non-fulfillment of twin tests under clause (ii) of
sub-section 1 of Section 45 of PMLA.”
11. In the case of Vihaan Kumar vs. State of Haryana, reported in 2025
SCC Online SC 269, wherein the Hon’ble Apex Court has referred the case of
Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra)
and the Court held as follows –
“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 per 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 Article 22(1) and Article
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.”
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12. Situated thus, the settled principle of law is that an arrested person must
be informed about the grounds of his arrest and detention which is mandatory
in nature. Article 22 safeguards the individual against arbitrary arrest and
detention. It ensures that no person can be arrested or detained without being
informed of the grounds for such arrest or detention. In the instant case, there
is no reflection in Section 50 Cr.P.C. notice or the arrest memo served to the
petitioners that the accused petitioners were informed about the grounds of
their arrest in connection with Hajo P.S. Case No. 181/2024. Under such
backdrop, this Court by following the observation of the Hon’ble Supreme Court
as above, is inclined to grant bail to the petitioners.
13. Accordingly, the petitioners, named above, shall be released on bail in
connection with NDPS Case No. 94/2024 (arising out of Hajo P.S. Case No.
181/2024) under Section 20(C)/29/31 of NDPS Act, on furnishing bail bond of
Rs.2,00,000/- (Rupees Two Lakh only) each with two suitable sureties
each of the like amount, out of which, one of the sureties should be a
Government employee of the State of Assam, to the satisfaction of learned
Special Judge, Kamrup, Amingaon, Assam.
The direction for bail is further subject to the conditions that the petitioners:
(a) shall not leave the territorial jurisdiction of learned Special Judge,
Kamrup, Amingaon, Assam without prior written permission from him/her
till disposal of the case;
(b) shall regularly attend the trial court and cooperate with the court for
early disposal of the case; and
(c) 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 them from disclosing such facts to the Court.
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14. The observation made by the Court is for the purpose of this bail
application only, not on merits of the case.
15. Violation or breach of any condition(s) shall render cancellation of bail.
16. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant