Page No.# 1/10 GAHC010071272025 2025:GAU-AS:4138 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1033/2025 RAFIKUL ISLAM S/O-ABDULLA SEKH, R/O-VILLAGE NO.1 SAILMARI,P.O AND P.S- DALAGAON,DISTRICT-DARRANG,ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP,ASSAM Advocate for the Petitioner : MR. S A HUSSAIN, MR D J HALOI,G BORO Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 04-04-2025 Heard Mr. D.J. Haloi, the learned counsel for the petitioner and also heard Mr.K.K. Das, the learned Additional Public Prosecutor appearing on behalf of State respondent. 2. This is an application filed under Section 483 of the Bharatiya Nagarik Page No.# 2/10 Suraksha Sanhita, 2023, praying for bail to the accused/petitioner, who has been languishing in jail hazot since 17.08.2024 in connection with NDPS Case No. 33/2025 u/s 21(b) and 29 of NDPS Act, 1985 arising out of Gorchuck P.S. Case No. 247/2024, registered u/s 20(b)(ii)(c) of NDPS Act, 1985, 3. It is submitted by Mr. Haloi, the learned counsel for the petitioner that present petitioner is innocent and is no way involved in the alleged offence. He was a driver by profession and on the day of the incident also his vehicle was hired by one lady/co-accused and the petitioner with a good impression that the lady (passenger) will carry genuine and legal materials, as usual he was driving the vehicle and subsequently he was intercepted by police and the contraband was recovered from the possession of the co-accused. Charge-sheet has already been submitted in this case and he is behind the bars since last 231 days but till date no charge has been framed in the present case. 4. Mr. Haloi further submitted that the case also does not come under the definition of NDPS and he submitted that there was a prayer made by the Investigating Officer before the learned CJM praying for drawing of representative sample along with the prayer for certification of correctness of inventory and to take photograph at the time of drawing of sample. The said petition/application was also supported with copy of inventory annexed and in the said copy of the inventory is particularly mentioned that the substance is a leafy substance which was suspected to be cannabis. He further submitted that as per definition of Section 2(iii)(b) - “Ganja, that is the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by (916) ABA-2173-2022.doc whatever, name they may be known or designated; and which means that if the seeds and leaves are accompanied by the tops then the same can be termed as ganja.” Page No.# 3/10 5. In the instant case it is specifically mentioned in the inventory that it was a leafy substance and there is no mention of any flowering top or fruiting top to full-fill the ingredient to come under the definition of ganja as per the Act. Further he submitted that the case was registered under 20(b)(ii)C and the charge-sheet has been filed only u/s 21(b) of the NDPS Act which is considered to be an intermediate quantity. 6. Mr. Haloi in this regard submitted that decisions from Hon’ble Bombay High Court passed in Anticipatory Bail Application No. 2173/2022 [KuntalDattaKadu v. State of Maharashtra] and Criminal Application (BA) No. 602/2024 [Mohammad JakirNawab Ali v. The State of Maharashtra] wherein it is also observed by the Hon’ble Bombay High Court that the substance which was seized is a green leafy substance without any flowering or fruiting tops cannot be considered as a ganja as per definition of the Act. 7. Mr. Haloi further raised the issue that at the time of issuing the Arrest Memo as well as the notice under Section 50 Cr.PC, corresponding to Section 47 BNSS, no grounds of arrest has been mentioned which is mandatorily required and in absence of the grounds of arrest it is in violation of Article 21/22(1) of the Constitution of India. He further submitted that the accused/petitioner was arrested on 17.08.2024 and was remanded for judicial custody, but due to non- mentioning of grounds of arrest in the Arrest Memo as well as in the Notice under Section 50 Cr.PC, corresponding to Section 47 BNSS, the arrest and the remand itself is illegal. 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 Page No.# 4/10 the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself. 8. In this context, Mr. Haloi, 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) PrabirPurkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254. 9. 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 50 Cr.PC, corresponding to Section 47 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. 10. Mr. Das, the learned Additional Public Prosecutor submitted in this regard that on perusal of the FIR as well as Forwarding Report prima facie it reveals that it is a case under the commercial quantity wherein the alleged cannabis/ganja was alleged to be recovered from the possession of the present accused/petitioner along with one co-accused and hence, he submitted that perusal of the case record / Case Diary will be required before passing of any order. 11. Mr. Das further submitted that since the case falls under the category of Page No.# 5/10 commercial quantity, the 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 available materials, 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, 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. 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 Arrest Memo and the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., corresponding to Section 47 BNSS. It is accordingly seen that while issuing the said Arrest Memo and the Notice, 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 Notices. 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. 13. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Sections 50 Cr.P.C., corresponding to Section 47 BNSS rendering the arrest and subsequent remand of the accused/petitioner Page No.# 6/10 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 (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. 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 Page No.# 7/10 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 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. 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 Arrest Memo as well as the Notice issued to Page No.# 8/10 the present accused/petitioner under Section 50 Cr.P.C., corresponding to Section 47 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 50 Cr.P.C., corresponding to Section 47 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 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. 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.” Page No.# 9/10 18. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage charge-sheet has already been filed and the charge has also been framed and the case is at the stage of appearance of witnesses. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo and the Notice issued to the present accused/ petitioner under Section 50 Cr.P.C., corresponding to Section 47 BNSS this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 19. 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 Additional Session Judge (FTC) No. 3, Kamrup(M), Guwahati, the accused/ petitioner, namely, Rafikul Islam, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Additional Session Judge (FTC) No. 3, Kamrup(M), Guwahati, 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 Additional Session Judge (FTC) No. 3, Page No.# 10/10 Kamrup (M), Guwahati; and (iv) that the petitioner shall not leave the jurisdiction of the learned Additional Session Judge (FTC) No. 3, Kamrup(M), Guwahati, without prior permission. 20. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant