Page No.# 1/5 GAHC010067172025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./999/2025 ABUL HUSSAIN KHAN S/O- JAHAR ALI KHAN, R/O- VILL- GOROIMARI, PS BONGAIGAON, DIST- BONGAIGAON, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A CHOUDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 13.05.2025 Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor, Assam. 2. By this second bail application filed under Section 483 BNSS, 2023, seeking bail by the petitioner, namely, Abul Hussain Khan, in connection with Special (NDPS) Case No. 161/2022 (arising out of Bazaricherra PS Case No. Page No.# 2/5 201/2022) under Sections 20(b)(ii)(C)/25 of NDPS Act, pending in the court of learned Special Judge, Sribhumi (Karimganj). 3. The matter relates to recovery and seizure of 41 packets of suspected ganja weighing 410 kgs from the hidden chamber of a truck bearing registration No. HR 55P 6819. 4. It is submitted by the learned counsel for the petitioner that this is the second bail application filed by the petitioner seeking bail. Earlier bail application was rejected by this Court on 08.11.2023 in BA No. 2317/2023. However, this time the petitioner prayed for bail on some new grounds by filing an additional affidavit that at the time of arrest of the petitioner on 23.11.2022 the arresting authority did not mention the ground of arrest in notice under section 50 Cr.P.C. as well as in the arrest memo which violates his fundamental right guaranteed under Article 22(1) of the Constitution of India, which resulted the arrest of the petitioner as illegal and therefore, he should no longer be retained in custody and be released on bail for the interest of justice. It is also submitted that the accused/petitioner has been languishing in judicial custody for more than 900 days since his arrest on 23.11.2022. 5. Per contra, Mr. Parasar, learned Additional Public Prosecutor has submitted that the first bail application of the petitioner was rejected on merit of the case as the commercial quantity of ganja was recovered from the alleged truck and he is the owner of the said truck. As such, Section 37 will come into play. However, he has admitted that no ground of arrest has been mentioned in the arrest memo or notice under Section 50 Cr.P.C. (S 47 of BNSS). 6. Having heard the learned counsel for the parties and on perusal of the trial court records, it is not in dispute that the notice served to the petitioner u/s 50 Cr.P.C as well as arrest memo do not show any grounds of arrest at the time of Page No.# 3/5 arrest of the petitioner. 7. In the case of Vihaan Kumar (supra), 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 b ecommunicated 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.” 8. 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. 9. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Page No.# 4/5 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 such 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.” 10. 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 served to the petitioner that the accused petitioner was informed about the ground of his arrest in connection with Bazaricherra PS Case No. 201/2022. Under such backdrop, this Court by following the observation of the Hon’ble Supreme Court as above, is inclined to grant bail to the petitioner. 11. Accordingly, the petitioner, named above, shall be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties 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, Sribhumi (Karimganj). The direction for bail is further subject to the conditions that the petitioner: (a) shall not leave the territorial jurisdiction of learned Special Judge, Sribhumi (Karimganj), Assam without prior written permission from him/her; Page No.# 5/5 (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 him from disclosing such facts to the Court. 12. It is pertinent to mention here that the findings of this court that the arrest of the petitioner stands vitiated will not affect the merits of the pending case. 13. The bail application is disposed of accordingly. JUDGE Comparing Assistant