Gauhati High Court
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GAHC010095222025
2025:GAU-AS:5942
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1451/2025
ABU SAYED KHAN
S/O SHRI JAHAR ALI KHAN
VILLAGE AND PO GORAIMARI, PS BONGAIGAON, DISTRICT
BONGAIGAON, ASSAM, PIN-783390
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL
BUREAU (NCB).
Advocate for the Petitioner : MR. M BISWAS, MS. A K CHOPHI,A GHOSAL,J SINGPHO
Advocate for the Respondent : SC, NCB,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 14-05-2025
Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Ms. M.
Kakati, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing
Counsel, NCB for the 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 NDPS Case No.
161/2022 corresponding to NCB Crime No. 02/2022, registered under Sections 20(b)
(ii)(C) and 29 of the NDPS Act, 1985, which is pending before the learned Additional
District & Sessions Judge No.2, Kamrup (M).
3. Scanned copy of the TCR as called for, has not yet been received.
4. It is submitted by Mr. Biswas, learned counsel for the petitioner, that the present
accused/petitioner is innocent and nothing has been seized from his conscious
possession. He has been arrested in connection with this case only on the basis of the
statement of the co-accused recorded under Section 67 of NDPS Act. However, it is
the settled position that the statement of the co-accused or the voluntary statement
recorded under Section 67 of the NDPS Act is not admissible at the time of trial or that
cannot be the basis for conviction as laid down by the Hon’ble Apex Court in the case
of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1], wherein it has been
held that the statement of the co-accused person recorded under Section 67 NDPS Act
is not tenable in the eye of law and it cannot be the basis of the conviction.
5. The petitioner got arrested on 08.03.2022 and since last 3 (three) years and 2
(two) months 7(seven) days, he has been in custody. The charge-sheet was filed on
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08.07.2022 and accordingly, the charge was framed on 01.08.2022, but till date, the
prosecutor could examine only 3 (three) witnesses out of 10 (ten) numbers of listed
witnesses and there is no probability of completion of trial within a short period as lots
of witnesses are yet to be examined by the prosecution and therefore he submitted
that considering the period of long incarceration, the petitioner may be enlarged on
bail.
6. In that context, Mr. Biswas also relied on following decisions:
(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC
OnLine SC 2068]
(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated
01.08.2022 in SLP Crl. No. 4173/2022]
(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC
OnLine SC 352]
(iv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]
(v) Md. Salman Hanif Shaikh Vs. State of Gujarat [SLA Criminal No.
5530/2022, decided on 22.08.2022]
7. Mr. Biswas further submitted that the grounds of arrest were also not mentioned
in the Notices issued to the present petitioner under Section 50/50A of Cr. P.C.
corresponding to Sections 47/48 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, 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. In this
context also, Mr. Biswas, learned counsel for the petitioner, relied on a decision of
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Hon’ble Supreme Court passed in the case of Vihaan Kumar Vs. State of Haryana,
reported in 2025 SCC OnLine SC 269.
8. Mr. Biswas further relied on another decision of Hon’ble Supreme Court passed in
the case of Directorate of Enforcement Vs. Subhash Sharma, reported in
(2025) SCC Online SC 240, wherein it has been held as under:
“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 the every
Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of
the Constitution. Therefore, when the 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.”
9. Mr. Biswas 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
Notices under Section 50/50A 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.
10. Ms. Kakoti, learned counsel appearing on behalf of the NCB, submitted that the
present accused/petitioner is one of the main conspirators in the trafficking of
3,071.16 kgs of Ganja, along with other co-accused persons, and accordingly, on the
prayer made by the IO, the petitioner was shown as arrested in the present case. She
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further submitted that the accused/petitioner is a habitual offender and is also facing
trial in another NDPS case. It was also submitted that charges have already been
framed in the present matter, and three witnesses have been examined by the
prosecution. Therefore, she argued that this is not at all a fit case for granting bail to
the accused/petitioner merely on the ground of the length of detention. She 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, she raised objection in granting bail to the accused/ petitioner.
11. Ms. Kakati 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 annexure annexed in the petition, 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.
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 Notices issued to the present accused/petitioner under Section
50/50A of Cr.P.C. It is accordingly seen that while issuing the said the Noticea, 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 as well as the
Arrest Memo. Thus, it is the admitted position that the grounds of arrest were not
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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 50/50A of Cr.P.C., 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. The Hon’ble Apex Court in the case of Prabir Purkayastha Vs. State (NCT of
Delhi), reported in (2024) 8 SCC 254 (supra), 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. Any
other interpretation would tantamount to diluting the sanctity of
the fundamental right guaranteed under Article 22(1) of the Constitution of
India.
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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 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 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 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.”
15. 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
Page No.# 8/1022 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.”
16. In the instant case also, as discussed above, it is seen that there is no mention
of grounds of arrest in the Notices issued to the present accused/petitioner under
Section 50/50A 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 50/50A 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
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37 of the NDPS Act which provides the restriction in granting bail in the cases of
commercial quantity under the NDPS Act.
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 3 (three) years and 2 (two) months 7(seven) days from the
date of his arrest and till date, the prosecution could examine only 3 (three) witnesses
out of 10 (ten) numbers of listed witnesses, though the charge-sheet was filed in the
year 2022 and it also cannot be denied that the prosecution may take considerable
time for examining the other witnesses.
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19. In view of the entire facts and circumstances, as discussed above, viz-a-viz non-
mentioning of grounds of arrest in the Arrest Memo as well as in Notice issued to the
present accused/petitioner under Section 50/50A of Cr.P.C., and also considering the
period of incarceration already undergone by the accused/petitioner, i.e. 3 (three)
years and 2 (two) months 7(seven) days, as well as the considering the view
expressed by the Hon’ble Supreme Court in the case laws referred to hereinabove, this
Court find it a fit case to extend the privilege of bail to the accused/petitioner.
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 Special Judge, Kamrup
(M), Guwahati, the accused/petitioner, namely, Abu Sayed Khan, be enlarged on
bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special Judge,
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 Special Judge, Kamrup (M); and
(iv) that the petitioner shall not leave the jurisdiction of the learned Special
Judge, Kamrup (M), Guwahati, without prior permission.
21. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
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