Gauhati High Court
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Page No.# 1/9
GAHC010105512025
2025:GAU-AS:8720
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1649/2025
NABIBUR RAHMAN
S/O SAMAD ALI R/O VILL MATANGA PS SALBARI PO NIMUA DISTBAKSA,
ASSAM 781315
VERSUS
THE UNION OF INDIA
REP BY THE STANDING COUNSEL, NCB
Advocate for the Petitioner : MR. N DUBEY, MS. M DAIMARY,MS M AHMED
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 26-06-2025
Heard Mr. N. Dubey, learned counsel for the petitioner. Also heard Ms. M.
Deka, the learned counsel appearing on behalf of Mr. S. C. Keyal, the learned
Standing Counsel, NCB for the respondent.
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2. This is an application under Section 483 of BNSS, praying for grant of bail
to the accused/petitioner, who has been arrested in connection with NDPS Case
No. 196/2024 corresponding to NCB Crime No. 20/2023, registered under
Sections 22(c)/28/29 of NDPS Act, which is pending before the Court of learned
Additional Sessions Judge No. 5, Kamrup (M).
3. It is submitted by Mr. Dubey, the learned counsel for the petitioner, that
the present accused/petitioner is innocent and has not committed the offence as
alleged in the FIR. He has been in custody since 23.12.2023, i.e., for more than
1 year 6 months. The offence report was filed on 12.06.2024, and out of the 10
prosecution witnesses, only three have been examined to date. Therefore, the
completion of the trial within a short period cannot be expected at this stage.
Hence, it is submitted that, considering the prolonged period of incarceration,
the accused/petitioner may be granted the privilege of bail.
4. In support of his case, Mr. Dubey further relied on the following decisions
of Hon’ble Apex Court:
(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533];
(ii) Shariful Islam @ Sharif Vs. The State of West Bengal
[SLP(Crl) 4173/2022 (Decided on 04.08.2022)]; and
(iii) Md. Muslim alias Hussain vs. State (NCT of Delhi), [2023 SCC
OnLine SC 352].
5. He further raised the issue of the non-communication of the grounds of
arrest to the present accused/petitioner at the time of issuing the notice under
Section 50 of the Cr.P.C. as well as in the Memorandum of Arrest, which is a
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mandatory requirement. He submitted that non-compliance with this
requirement amounts to a violation of Articles 21 and 22(1) of the Constitution
of India. He accordingly submitted that all the full particulars of the offence,
which is alleged to have been committed by the accused, should be informed to
him at the time of his arrest and otherwise it would be against the mandate of
the Constitution of India as well as the statutory provisions which would vitiate
the arrest itself.
6. In this context also, Mr. Dubey, learned counsel for the petitioner, cited the
following decisions:
(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.
7. He further submitted that the claim of the respondent that the
accused/petitioner was provided with sufficient grounds of arrest through the
communication of the Memorandum of Arrest is untenable. He contends that
the said Memorandum of Arrest does not specify the offence allegedly
committed by the accused/petitioner. It merely states that there is a prima facie
case to proceed against the petitioner under Section 8(c), read with Sections
22(c) and 29 of the NDPS Act, which, according to him, does not constitute
specific compliance with the constitutional mandate. He submits that this
amounts to a clear violation of Articles 21 and 22(1) of the Constitution of India.
Furthermore, he submits that the notice issued under Section 50 of the Cr.P.C.
does not reflect any grounds of arrest, except for the case number and other
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general particulars. There is no mention of the specific grounds of arrest, which
also constitutes a violation of Articles 21 and 22(1) of the Constitution of India.
Accordingly, he submits that in light of these constitutional violations, as well as
the prolonged incarceration of the accused/petitioner, the petitioner may be
enlarged on bail. He further undertakes that, being a permanent resident of the
stated locality, he will appear before the learned Trial Court as and when
directed.
8. Mr. Dubey 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 or Notices under Section 50 of Cr.P.C. 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. Ms. Deka, the learned Standing Counsel for the NCB, submitted that a
huge quantity of Methamphetamine tablets was recovered from the possession
of the accused/petitioner. He further submitted that in the voluntary statement
made by the accused/petitioner under Section 67 of the NDPS Act, the accused
admitted his involvement in trafficking the said contraband. The accused
described in detail how he was associated with the alleged offence, and it is also
an admitted position that the entire contraband was recovered from his
possession. He further submitted that, as per the charge sheet, the
accused/petitioner travelled from Cooch Behar along with his associates and
met them at Barpeta. Thereafter, they jointly trafficked 7.198 kilograms of
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Methamphetamine tablets, which were seized in the instant case. Accordingly, it
is submitted that the recovery of the contraband was made from the conscious
possession of the accused/petitioner, and therefore, she strongly opposed the
grant of bail at this stage.
10. She further 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, she 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.
11. She further submitted that the Memorandum of Arrest contains detailed
information regarding the grounds of arrest and the offence committed by the
accused/petitioner, and that the grounds of arrest were also communicated to
the family member of the accused/petitioner. Thus, there was full compliance
with the legal provisions while furnishing the Memorandum of Arrest. She also
submitted that Section 50 of the Cr.P.C. does not specifically require that the
grounds of arrest be communicated in detailed written form. She further
submitted that the notice issued to the accused/petitioner under Section 50 of
the Cr.P.C. reflects that proper intimation regarding the arrest was indeed given
to him. Accordingly, she raised objection to the bail application and submitted
that this is not a fit case for granting bail merely on the grounds of the
prolonged period of incarceration or the alleged non-communication of the
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grounds of arrest. In that context, she also relied on a decision of the
Coordinate Bench of this Court passed in Bail Application No. 1448/2025.
12. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the annexures filed along with
the petition, more particularly, the Notice issued to the present
accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while
issuing the said Notice, though the name and the address of the
accused/petitioner along with the case number as well as the Sections under
which he was arrested are being mentioned, but admittedly there is no mention
about the grounds of arrest in the in the Notice. Thus, it is the admitted position
that the grounds of arrest were not intimated to the accused/petitioner or to his
family members at the time of his arrest which is a statutory right of an accused
and it is also a constitutional mandate that the person should be intimated
regarding the grounds of arrest under which he was taken into custody of
police.
13. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to
Section 47 of BNSS, rendering the arrest and subsequent remand of the
accused/petitioner invalid. The accused/petitioner has the fundamental and
statutory right to be informed about the grounds of arrest in writing and copy of
such written ground of arrest have to be furnished to the arrested person as a
matter of course and without any explanation. Non-supply of written grounds of
arrest to the arrested accused/ petitioner would vitiate the arrest even if the
case has been charge-sheeted.
14. It is evident from the Memorandum of Arrest issued to the
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accused/petitioner that it mentions the recovery of the contraband and states
that there is a prima facie case against the accused/petitioner under Section
8(c), read with Sections 22(c) and 29 of the NDPS Act. However, it is a fact that
there is no specific mention or detailed description of the alleged offence
committed by the accused/petitioner. It is also an admitted position that Section
8(c) of the NDPS Act comprises various types of offences, but the Memorandum
fails to specify which particular aspect or sub-offence under Section 8(c) is being
invoked in the present case to attract the application of Sections 22(c) and 29 of
the Act.
15. In the case of Vihaan Kumar (supra), the Hon’ble Apex Court clearly
held that “the requirement of informing the person arrested on the grounds of
arrest is not merely a formality, but a mandatory constitutional requirement
under Article 22 of the Constitution.”
16. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest 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 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.
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17. 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.”
18. In the same time, it also cannot be denied that the accused/petitioner is behind
the bar for more than 1 (one) year & 6 (six) months from the date of his arrest and till
then, the prosecution has been able to examine only 3(three) witnesses out of 10
(ten) numbers of listed witnesses and it also cannot be denied that to examine the
remaining witnesses, the prosecution may take a considerable period for completion of
the trial.
19. In view of the entire facts and circumstances as discussed above, viz-a-viz non-
mentioning of grounds of arrest in the Notice issued to the present accused/petitioner
under Section 50 Cr.P.C., and also considering the period of incarceration already
undergone by the accused/petitioner, i.e. 1 (one) year & 6 (six) months, as well as the
considering the view expressed by the Hon’ble Supreme Court in the case laws
referred to hereinabove, further considering the case of the present petitioner in the
same footing that the co-accused Babla Miah who has already been granted bail by
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this Court, I find that the petitioner is also entitled bail on the ground of parity.
20. 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 Additional District &
Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M), the accused/petitioner,
namely, Nabibur Rahman, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Additional
District & Sessions Judge-cum-Special Judge (NDPS) No.5, Kamrup (M),
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 Additional District & Sessions Judge-cum-Special Judge (NDPS)
No.5, Kamrup (M); and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional District & Sessions Judge-cum-Special Judge (NDPS) No.5,
Kamrup (M), without prior permission.
21. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant