Page No.# 1/9 GAHC010072772025 2025:GAU-AS:4376 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1073/2025 USMAN ALI S/O CHERAG ALI R/O VILL- SONATULA P.S. PATHARKANDI DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM TO BE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 08.04.2025 Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sharma, 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 Special (NDPS) Case No. 42/2024, arising out of Nilambazar P. S. Case No.80/2024, registered under Sections 21(C)/25/29 of NDPS Act, 1985, pending before the Court of learned Additional Sessions Judge, Karimganj. 3. Scanned copy of the case record has already been received and I have perused same. 4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner was earlier arrested on 03.07.2024 in connection with another case, vide Spl. (NDPS) Case No. 42/2024, on the basis of the statement of the co-accused. He further submitted that the accused/petitioner is innocent and is not at all involved in the alleged offence, however, he has been shown arrested on 05.09.2024 in connection with the present case, based on the prayer made by the Investigating Officer (IO). He was also kept in police remand for 1 day, and upon completion of the police remand, the accused/petitioner was again produced before the Court on 06.09.2024 and was accordingly sent to judicial custody. Since then, he is behind the bar. Subsequently, the charge-sheet was filed on 16.09.2024, and in the said charge-sheet, the prosecution has relied upon as many as 11 witnesses to prove the case. 5. Mr. Choudhury, further submitted that when the petitioner was shown as Page No.# 3/9 arrested on 05.09.2024, the grounds of arrest was not communicated to the present petitioner in the Arrest Memo as well as in the Notices under Section 50 Cr.P.C., corresponding to Section 47 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 further submitted that non-mentioning of grounds of arrest in the Arrest Memos as well as in the Notices under Section 47 of 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 them 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. 6. In this context also, Mr. Choudhury, learned counsel for the petitioner, 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. 7. More so, he submitted that even in the case of commercial quantity and the rigor of Section 37 NDPS Act, 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.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 petitioners are entitled to bail. 8. Mr. Sharma, the learned Additional Public Prosecutor, has submitted that the Page No.# 4/9 petitioner is shown as arrested in the present case by the learned Trial Court based on the materials collected by the Investigating Officer (I.O.), which are available 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 the learned Trial Court allowed the prayer for the shown arrest only considering the materials available in the case diary, even though the Arrest Memo or the notice under Section 47 of the BNSS was not issued to the accused/petitioner. Hence, the communication of the grounds for arrest or the issuance of a notice under Section 47/48 is not necessary. Accordingly, he raised objections and submitted that this is not a fit case for granting bail at this stage. He further submitted that although there may not be any written communication regarding the grounds for arrest, the materials available in the case record clearly indicate that the accused were informed of the grounds for arrest orally during the investigation, and hence, he raised objections to granting bail to the accused/petitioner. 9. From the submissions made by the learned counsels for both sides, it is evident that the 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 to his family member in connection with the arrest in the present case. Furthermore, it is seen that earlier the accused/petitioner was arrested on 03.07.2024 and in the present case he was shown arrest on the prayer made by the IO. But, at the time of his arrest he was not provided with any arrest Memo or Notice under Section 47/48 of BNSS. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioners or to their family members at the time of their 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. 10. It is the contention of the petitioner that non-communication of the grounds of Page No.# 5/9 arrest is in violation of Section 47 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 accused/ petitioners would vitiate the arrest even if the case has been charge-sheeted. 11. 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 Page No.# 6/9 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.” 12. 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 Page No.# 7/9 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.” 13. 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 in the Notice issued to the present accused/petitioner under Section 47 of Cr.P.C. and except the names, addresses 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 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 petitioners are vitiated and it may be a sufficient ground to consider their bail applications 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. 14. 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 Page No.# 8/9 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.” 15. From the submissions made by both sides and from the documents 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 them under Section 47/48 of the BNSS, this Court finds it appropriate to grant the privilege of bail to the accused/petitioner. 16. 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, Karimganj, the accused/petitioner, namely, Usman Ali, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Page No.# 9/9 Judge, Karimganj, on each and every date to be fixed by the Court; (ii) that the petitioners 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 them from disclosing such facts to the Court or to any police officer; (iii) that the petitioners shall submit their Aadhar Card and PAN Card before the learned Special Judge, Karimganj; and (iv) that the petitioners shall not leave the jurisdiction of the learned Special Judge, Karimganj, without prior permission. 17. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant