Gauhati High Court
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GAHC010065692025
2025:GAU-AS:8017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./936/2025
MD HABIBUR RAHMAN
SON OF LATE NAKIBUDDIN AHMED RESIDENT OF VILLAGE MOLLAPARA,
P.O. MONGOLDOI, P.S. MONGOLDOI, DIST. DARRANG , ASSAM, PIN-784125
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. R PHUKAN, C M DEKA,MR. D HAZARIKA,MS A GAYARI
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
17.06.2025
Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. D.
P. Goswami, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with Dillai
P.S Case No. 63/2023, registered under Sections 21(C)/29 of NDPS Act.
3. Scanned copy of the case record has already been received and I have
perused same.
4. It is submitted by Mr. Phukan, learned counsel for the petitioner, that the
present accused/petitioner is innocent and nothing has been seized from his
conscious possession. However, the present accused/petitioner was arrested on
15.11.2023 and since 577 days he is behind the custody. The charge-sheet was
filed on 16.02.2024 but till date, the prosecution could not examined any
witnesses, though 8 (eight) numbers of witnesses is being listed in the charge-
sheet and therefore he submitted that considering the length of detention, the
petitioner may be enlarged on bail.
5. He further submitted that the grounds of arrest was not communicated to
the present petitioner in the Notice issued under Section 50 of Cr.P.C.,
corresponding to Section 47 of BNSS, which is mandatorily required and non-
compliance of the same is in violation of Articles 21 & 22(1) of the Constitution
of India. He accordingly submitted that all the full particulars of the offence,
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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. Phukan, 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. More so, he submitted that even in the case of commercial quantity and
the rigor of Section 37 NDPS Act, 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 Notice under Section 50 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.
8. Mr. Goswami, learned Additional Public Prosecutor, submitted that during
the course of investigation, the IO collected sufficient incriminating material
against the present accused/petitioner, and 334.83 grams of heroin was seized
from his conscious possession. He further submitted that admittedly no
witnesses has been examined by the prosecution till date, and the trial is about
to commence and therefore, he submitted that this is not at all a fit case to
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grant bail to the accused/petitioner only considering the length of detention of
the present accused/petitioner. He also submitted that there may not be any
written communication for grounds of arrest, but from the materials available in
the case record, it is very much evident that the accused was informed about
the grounds of arrest orally during investigation and hence, he raised objection
in granting bail to the accused/ petitioner.
9. Further Mr. Goswami 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, they have not committed
such offence nor there is any probability of committing similar kind of offence if
they 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.
10. 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 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 Section under
which they was arrested is being mentioned, but admittedly there is no mention
about the grounds of arrest in the Notice. Thus, it is the admitted position that
the grounds of arrest was not intimated to the accused/petitioner or to his
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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.
11. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 50 Cr.P.C. rendering the arrest and
subsequent remand of the accused/petitioner invalid. The accused/petitioner
have 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.
12. 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,
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.
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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 is 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
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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 is general in nature.”
13. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court
has held has under:
“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 is 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 is 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
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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.”
14. 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 number, 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.
15. 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
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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.”
16. In view of the entire discussions made above, it is the opinion of this Court
that the length of detention already undergone by the accused/petitioner may
not be a good ground for considering his bail application at this stage as the
case has already been charge sheeted and the next date is fixed on 25.06.2025
for evidence. However, considering the fact that the grounds of arrest was not
communicated to the petitioner or mentioned in the Notice issued to the present
accused/petitioner under Section 50 of Cr.P.C., this Court find it a fit case to
extend the privilege of bail to the accused/petitioner.
17. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) only each 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, NDPS, Karbi Anglong, the accused/petitioner, namely,
Md. Habibur Rahman, be enlarged on bail, subject to the following
conditions:
(i) that the petitioner shall appear before the Court of learned Special
Page No.# 10/10Judge, NDPS, Karbi Anglong, 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 them from disclosing such facts
to the Court or to any police officer;
(iii) that the petitioner shall submit the Aadhar Card and PAN Card
before the learned Special Judge, NDPS, Karbi Anglong; and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, NDPS, Karbi Anglong, without prior permission.
18. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant