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Gauhati High Court
Shajahan Ahmed vs The State Of Assam on 23 April, 2025
Page No.# 1/11
GAHC010050512025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./719/2025
SHAJAHAN AHMED
S/O- ABUL HUSSAIN,R/O.- VILLAGE JOKIALA,P.O-ERALIGOOL, P.S-
PATHERKANDI, DIST- SRIBHUMI,ASSAM,PIN-788723
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR H I CHOUDHURY, H YEASMIN,MR. A K AZAD,MR. P K
ROYCHOUDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 23.04.2025
Heard learned counsel Mr. P.K. Roychoudhury for the petitioner Shajahan
Ahmed, who has filed this application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 with prayer for bail as he is behind bars since
04.03.2024 in connection with Special (NDPS) Case No. 23/2024 arising out of
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Ratabari Police Station Case No. 30/2024 under Section 21 (b)/21(c)/25/29 of
Narcotic Drugs and Psychotropic Substances Act, 1985 pending in the Court of
learned Special Judge, Sribhumi.
2. It is submitted that not a single witness has been examined so far. There
are eight enlisted witnesses in the charge sheet and culmination of trial thus
appears to be remote. It is further submitted that as the petitioner was shown
arrested, the grounds of arrest were not communicated to him. A certified copy
of the notice under Section 50 of Code of Criminal Procedure, 1973 (CrPC for
short) has been submitted on behalf of the petitioner. This copy is marked as X
and will form a part of the record.
3. On the contrary, learned Additional Public Prosecutor Mr. K.K. Das has
raised serious objection stating that the petitioner is not entitled to bail as the
grounds of arrest has been mentioned to him. In the notice under Section 50 of
CrPC, the offence under which the petitioner has been booked is reflected and it
has been clearly mentioned to him that he has been arrested in connection with
this case and has been produced before the learned Single Judge, Sribhumi on
05.03.2024. He has also been apprised through the notice under Section 50 of
CrPC that he has been forwarded in connection with a non-bailable offence and
his engaged counsel may pray for bail before the Court. This notice has been
accepted by the petitioner and he has affixed his signature in English and thus,
it is apparent through the notice under Section 50 of CrPC that the grounds of
arrest have been clearly communicated to the petitioner. In addition to the
notice under Section 50 of CrPC, the forwarding report clearly reflects the
grounds of arrest.
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4. I have considered the submissions at the bar with circumspection. It is
submitted on behalf of the petitioner that he is the owner of the vehicle and this
is the reason why he has been forwarded to custody. It is also submitted that
the petitioner was not in conscious possession of the contraband. He is a mobile
shop owner.
5. Charge sheet has been laid against the petitioner and the co-accused, with
allegations that on 10.02.2024 an information was received by the Investigating
Team relating to a vehicle carrying suspected drugs kept hidden inside the
vehicle’s body and chamber and the vehicle was travelling from Mizoram
towards Ratabari PWD Road. The registration No. of the vehicle was MZ 05A
2735.
6. A naka checking was held and Maruti Eco Van bearing registration No. MZ
05A 2735 was intercepted. A secret chamber was unearthed under the body of
the Maruti Eco Van. Suspected contraband was concealed in the chamber. 12
soap cases of various colours were found and each contained suspected heroin
along with 200 yaba tablets. The total weight of heroin was 150.64 grams and
during investigation, the present petitioner was shown as arrested in connection
with this case and charge sheet has been laid against him.
7. It is true that the petitioner has been behind bars for more than one year
and not a single witness has been examined.
8. The petitioner has relied the decision of the Hon’ble Supreme Court in the
case of Vihaan Kumar -vs- State of Haryana & anr. in connection with
Special Leave Petition (Crl.) No.13320/2024 wherein vide order dated
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07.02.2025, it has been observed that :
“11. The view taken in the case of Pankaj Bansal1 was reiterated by this Court in the
case of Prabir Purkayastha2. In paragraphs nos. 28 and 29, this Court held thus:
“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.”
“12. This Court held that the language used in Articles 22(1) and 22(5) regarding
communication of the grounds is identical, and therefore, this Court held that interpretation
of Article 22(5) made by the Constitution Bench in the caseof Harikisan v. State of Maharashtra3, shall ipso facto apply to Article 22(1) of the
Constitution of India insofar as the requirement to communicate the ground of arrest
is concerned. We may also note here that in paragraph 21, in the case of Prabir
Purkayastha2, this Court also dealt with the effect of violation of Article 22(1) by
Page No.# 5/11holding that any infringement of this fundamental right would vitiate the process of
arrest and remand. Paragraph 21 reads thus:
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.”
“13. In the case of Lallubhai Jogibhai Patel v. Union of India, in paragraph 20, this Court held
thus:
“20. It is an admitted position that the detenu does not know English. The grounds of
detention, which were served on the detenu, have been drawn up in English. It is true that
Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has
filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to
the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the
Constitution, which requires that the grounds of detention must be “communicated” to the
detenu. “Communicate” is a strong word. It means that sufficient knowledge of the basic
facts constituting the “grounds” should be imparted effectively and fully to the detenu
in writing in a language which he understands. The whole purpose of communicating
the “ground” to the detenu is to enable him to make a purposeful and effective
representation. If the “grounds” are only verbally explained to the detenu and nothing
in writing is left with him, in a language which he understands, then that purpose is
not served, and the constitutional mandate in Article 22(5) is infringed. If any
authority is needed on this point, which is so obvious from Article 22(5), reference
may be made to the decisions of this Court in Harikisan v. State of Maharashtra [1962
Supp 2 Supp 2 SCR 918 : AIR 1962 SC 911 : (1962) 1 4 (1981) 2 SCC 427 Cri LJ 797]
and Hadibandhu Das v. District Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 :1969
Cri LJ 274] .
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Therefore, as far as Article 22(1) is concerned, compliance can be made by
communicating sufficient knowledge of the basic facts constituting the grounds of
arrest to the person arrested. The grounds should be effectively and fully
communicated to the arrestee in the manner in which he will fully understand the
same. Therefore, it follows that the grounds of arrest must be informed in a language
which the arrestee understands. That is how, in the case of Pankaj Bansal1, this Court
held that the mode of conveying the grounds of arrest must necessarily be meaningful
so as to serve the intended purpose. However, under Article 22(1), there is no
requirement of communicating the grounds of arrest in writing. Article
22(1) also incorporates the right of every person arrested to consult an advocate of
his choice and the right to be defended by an advocate. If the grounds of arrest are
not communicated to the arrestee, as soon as may be, he will not be able to
effectively exercise the right to consult an advocate. This requirement incorporated
in Article 22(1) also ensures that the grounds for arresting the person without a
warrant exist. Once a person is arrested, his right to liberty under Article 21 is
curtailed. When such an important fundamental right is curtailed, it is necessary that
the person concerned must understand on what grounds he has been arrested. That
is why the mode of conveying information of the grounds must be meaningful so as to
serve the objects stated above.
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 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.
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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.”
* * * * *
* * * * *
* * * * *
* * * * *
* * * * *
"21. Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory
requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to the arrested person in such
a manner that sufficient knowledge of the basic facts constituting the grounds is imparted
and communicated to the arrested person effectively in the language which he understands.
The mode and method of communication must be such that the object of the constitutional
safeguard is achieved;
c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the
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burden will always be on the Investigating Officer/Agency to prove compliance with the
requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the
accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to
personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with
the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders
passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate
the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not
validate a breach of constitutional mandate under Article 22(1);
e) When an arrested person is produced before a Judicial Magistrate for remand, it is the
duty of the Magistrate to ascertain whether compliance with Article 22(1) and other
mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order
the release of the accused. That will be a ground to grant bail even if statutory restrictions on
the grant of bail exist.
The statutory restrictions do not affect the power of the court to grant bail when the
violation of Articles 21 and 22 of the Constitution is established.”
9. The petitioner has submitted a certified copy of the notice under Section
50 of the CrPC. This Certificate is marked as ‘X’ and will form a part of the
record.
10. At this belated stage, the petitioner has filed this petition and has relied
on the decision of the Hon’ble Supreme Court in the case of Vihaan Kumar
(supra). There is no whisper in the petition that the grounds of arrest were not
communicated to the petitioner. The notice under Section 50 of the CrPC
marked as ‘X’ clearly reveals that the grounds of arrest were communicated to
the petitioner in English and the petitioner has given his signature and received
the notice under Section 50 of the CrPC in English. Thus, it is not believable that
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the petitioner was not communicated about the grounds of arrest. The notice
under Section 50 of the CrPC and the forwarding report clearly reveals the
grounds of arrest under which the petitioner was arrested. Thus, in addition to
Section 50 of the CrPC, there is also contemporaneous record which shows what
the grounds of arrest were, when the petitioner was shown as arrested in
connection with this instant case.
11. It has been observed by the Hon’ble Supreme Court in the case of Vihaan
Kumar that when an arrestee pleads before a Court that the grounds of arrest
were not communicated , burden to prove the compliance of Article 22 (1) of
the Constitution of India is on the police. Here, in this case, police was not
accorded an opportunity to prove compliance of Article 22 (1) but the record
speaks for itself. The fact that the petitioner was shown arrested in connection
with this case clearly reveals the criminal antecedents of the petitioner. It would
be apt to reiterate that it has been observed by the Hon’ble Supreme court in
Vihaan Kumar’s Case (supra) that as far as Article 22(1) is concerned,
communicating sufficient knowledge of the basic facts constituting the grounds
of arrest to the person arrested is mandatory. The grounds should be effectively
and fully communicated to the arrestee in the manner in which he fully
understands the same. Therefore, it follows that the grounds of arrest must be
informed in a language which the arrestee understands. It has been held that
the mode of conveying the grounds of arrest must necessarily be meaningful so
as to serve the intended purpose. It has also been observed in para-13 of
Vihaan Kumar’s case that “However, under Article 22(1), there is no requirement
of communicating the grounds of arrest in writing. Article 22(1) also
incorporates the right of every person arrested to consult an advocate of his
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choice and the right to be defended by an advocate.”
12. It has also been observed by the Hon’ble Supreme Court in paragraph 15
of Vihaan Kumar’s case (supra) which is quoted herein below:
“15.We have already referred to what is held in paragraphs 42 and 43 of the decision in the
case of Pankaj Bansal. This Court has suggested that the proper and ideal course of
communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously,
before a police officer communicates the grounds of arrest, the grounds of arrest have to be
formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing.
Although there is no requirement to communicate the grounds of arrest in writing, what is
stated in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal1 are suggestions
that merit consideration. We are aware that in every case, it may not be practicable to
implement what is suggested. If the course, as suggested, is followed, the controversy about
the non- compliance will not arise at all. The police have to balance the rights of a person
arrested with the interests of the society. Therefore, the police should always scrupulously
comply with the requirements of Article 22.”
13. In view of the foregoing discussion, it is hereby held that the grounds of
arrest were communicated to the petitioner and the petitioner clearly
understood the grounds of arrest. Thus, his liberty has not been curtailed. In
addition to contemporaneous records relating to the grounds of arrest, the
notice under Section 50 of the CrPC also clearly reveals that the grounds of
arrest were communicated to the petitioner in writing. The petitioner was
clearly booked under an offence of NDPS Act. At this later stage, when charges
have been framed and trial has commenced, the petitioner has suddenly denied
that the grounds of arrest were communicated to him. The petitioner has not
mentioned in his petition that the grounds of arrest were not communicated to
him. It has already been held in the foregoing discussion that the petitioner’s
claim that the grounds of arrest were not communicated to him is not reliable.
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The petitioner is facing trial for transporting not only homogenous type of
contraband but two distinct types of contraband being 200 YABA tablets and
150.64 grams of heroin.
13. I have considered the nature and gravity of the offence. It is trite law that
in an offence of serious nature , length of detention is not the ground for bail.
The rigours of Section 37 of the NDPS Act indeed acts as an embargo against
bail prayer.
14. At this juncture, it cannot be held that the petitioner’s right to personal
liberty has been curtailed. I am hesitant to consider the bail petition at this
stage. Petition stands rejected at this stage. The petitioner may subsequently
apply for bail if trial is procrastinated by the State or by the Court.
JUDGE
Comparing Assistant
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