Page No.# 1/11 GAHC010068962025 2025:GAU-AS:4289 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1016/2025 JABRUL ALAM S/O ABDUL HOQUE, R/O VILLAGE- WEST TANGIBARI, P.O- DALGRAM, P.S- RATABARI, DISTRICT- SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR. S DUTTA Advocate for the Respondent : PP, ASSAM, Page No.# 2/11 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 07.04.2025 Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. K. K. Das, 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 Badarpur P. S. Case No. 262/2024, under Sections 21(C)/25/29 of NDPS Act, corresponding to Special (NDPS) Case No. 108/2024, which is pending before the Court of learned Sessions Judge, Sribhumi. 3. In pursuance of the order dated 04.04.2025, Mr. Das, the learned Additional Public Prosecutor obtained instructions regarding the arrest of the petitioner. He accordingly submitted that the petitioner is shown to have been arrested in the present case by the learned Trial Court, based on the materials collected by the Investigating Officer (I.O.) in the Case Diary during the investigation. Therefore, the issue of an Arrest Memo and Notice under Section 47/48 of the BNSS does not arise. He further submitted that, since the I.O. did not seek any police remand and the petitioner was interrogated in jail in connection with this case, there was no request for police remand before the learned Magistrate. Hence, the communication of the grounds for arrest or the issuance of a notice under Section 47/48 is not necessary. 4. It is submitted by Mr. Dutta, learned counsel for the petitioner, that the accused/petitioner is presently in jail in connection with Badarpur P.S. Case No. Page No.# 3/11 262/2024, under Sections 21(C)/25/29 of the NDPS Act. He was arrested in the instant case on 11.12.2024 and has been in custody since then. He was earlier arrested in connection with Ratabari P.S. Case No. 209/2024, under Sections 61(2)/121(2)/132/109 of the BNS Act and has been in judicial custody since 14.10.2024. Subsequently the case has been charge sheeted on 10.02.2025. 5. He further submitted that the petitioner is in no way involved in the alleged offence. The vehicle, which was allegedly carrying the illegal contraband, was intercepted by the police, and according to GD entry No. 3 dated 13.10.2024, there is no mention of the petitioner’s involvement in the said entry. The names of four other persons, who were allegedly carrying the contraband in the vehicle, are mentioned in the FIR. The accused/petitioner was shown arrested in connection with this case only on the basis of the statement of the co-accused recorded under Section 67 of NDPS Act, which is not admissible as per the ratio 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. 6. Mr. Dutta further submitted that, at the time of the petitioner’s arrest, the grounds for arrest were not mentioned in the Arrest Memo or the Notice issued to the petitioner, nor to his family members/relatives under Sections 47/48 of the BNSS, on the basis of which he was shown to have been arrested in connection with this case. He contended that such non-compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India, as the disclosure of arrest grounds is a mandatory legal requirement. He accordingly submitted Page No.# 4/11 that all the full particulars of the offence alleged to have been committed by the accused should be communicated to him at the time of his arrest. Failure to do so would violate the mandate of the Constitution of India as well as statutory provisions, potentially vitiating the arrest itself. 7. In this context, Mr. Dutta, learned Counsel for the petitioner, also 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. 8. He further 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 Notice under Section 47/48 of BNSS 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. In this context, Mr. Das, learned Additional Public Prosecutor, further submitted that the case of Tofan Singh (supra) does not bar the Investigating Agency to proceed with the investigation on the basis of statement of the co- accused or on the basis of the statement recorded under Section 67 NDPS Act. He further submitted that there may not be any written communication for Page No.# 5/11 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. 10. From the submissions made by the learned counsels for both sides, it is evident that the Investigating Officer (IO) did not follow any procedure to inform the accused/petitioner of the grounds for his arrest, nor was any notice issued to him or his family members in connection with the arrest in the present case. Furthermore, based on the FIRs of both cases and the sections under which they were registered, it is clear that these are not similar offences under which the petitioner was shown to have been arrested. In the earlier case, the charges were registered under Sections 61(2)/121(2)/132/109 of the BNSS, whereas the present case is registered under Sections 21(C)/25/29 of the NDPS Act. 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. 11. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47/48 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 Page No.# 6/11 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. 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. Page No.# 7/11 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.” 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 Page No.# 8/11 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.” 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 47/48 of BNSS 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 47/48 of BNSS, 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 Page No.# 9/11 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 her 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 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. From the submissions made by both sides and from the documents Page No.# 10/11 available in the case record, it is evident that no grounds for the arrest were communicated to the petitioner, which constitutes a violation of Articles 22(1) of the Constitution of India. Therefore, considering the fact that the grounds for arrest were neither communicated to the petitioner nor mentioned in the Notice issued to him under Section 47/48 of the BNSS, this Court finds it appropriate to grant 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 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, Sribhumi, the accused/petitioner, namely, Jabrul Alam, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Sribhumi, 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 her Aadhar Card and PAN Card before the learned Special Judge, Sribhumi; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Sribhumi, without prior permission. Page No.# 11/11 18. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant