Page No.# 1/11 GAHC010076892025 2025:GAU-AS:5992 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1173/2025 FARUK AHMED SON OF ASAB UDDIN, RESIDENT OF VILLAGE SOUTH KEUTI, P.S. PATHARKANDI, DIST. SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 03.06.2025 Heard Mr. A. Ahmed, learned counsel for the accused and Mr. P. Barthakur, learned Additional Public Prosecutor for the State respondent. 2. This application, under Section 483 of the BNSS, is preferred by the accused, namely, Faruk Ahmed, who has been languishing in jail hazoot since 18.07.2022, in connection with the Special (NDPS) Case No. 108/2022, arising out of Patharkandi P.S. Case No. 177/2022, under Sections 22(c)/25/29 of the NDPS Act, for grant of bail. Page No.# 2/11 3. It is to be noted here that the aforementioned case has been registered on the basis of one FIR lodged by S.I. M. Narendra Singha of Patharkandi P.S. on 18.07.2022. 3.1. The essence of allegations, made in the aforementioned FIR is that acting on 18.07.2022, at about 02:00 am, the informant along with his staff, acting on a tip off, conducted search in the cowshed of the house premises of one Ashab Uddin of South Keuti and recovered 30,000 suspected Yaba Tablets, weighing 3.270 kg and seized the same by preparing seizure list in presence of witnesses. 3.2. During interrogation, accused Asab Uddin reveals that his son Faruk Ahmed, (the present accused) has started peddling of drugs and he might have kept the tablets concealed and presently he is at Mizoram. 4. Mr. Ahmed, learned counsel for the accused submits that this is the third bail application preferred by the accused and the first one, being BA No. 3467/2023, was rejected by this Court, vide order dated 23.01.2024, and the second one, being BA No. 2475/2024 was also rejected vide order dated 23.09.2024. Mr. Ahmed further submits that the present bail application is preferred on the ground that at the time of his arrest, the IO had not communicated the grounds of his arrest in writing and in view of the decision of Hon’ble Supreme Court in the case of Prabir Purkayastha vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; Pankaj Bansal vs. Union of India, reported in (2024) 7 SCC 576, and Vihaan Kumar vs. State of Haryana and Another, reported in 2025 SCC OnLine SC 269, for non- compliance of the mandate of Article 22(1) of the Constitution of India, and as such the accused is entitled to bail. Page No.# 3/11 4.1. Page No.# 3/11 4.1. Referring to Annexure – 9, the copy of notice under Section 50 of the Cr.P.C.; Annexure – 10, the copy of arrest memo, dated 02.02.2023; and Annexure – 11, the copy of inspection memo, dated 02.02.2023, Mr. Ahmed submits that aforesaid annexures never indicates that the mandates of Article 22(1) of the Constitution of India and the mandates in the decisions referred herein above are complied with. Therefore, Mr. Ahmed has contended to allow the petition and to release the accused on bail. 5. Per-contra, Mr. Borthakur, learned Additional Public Prosecutor has vehemently opposed the petition and submits that though the arresting authority had not written the grounds in the notice as well as in the arrest memo and also in the inspection memo, yet, it appears that the ground of arrest was communicated to the accused. Mr. Borthakur, referring to a decision of Hon’ble Supreme Court in the case of Ram Kishor Arora (Supra), submits that in view of the ratio laid down in the aforesaid case, retrospective effect of the decisions of Hon’ble Supreme Court in the case of Pankaj Bansal (supra), cannot be given as the word ‘henceforth’ was used in the aforesaid case, especially in paragraph No. 23, from which it can be concluded that it is prospective in nature. Mr. Borthakur also submits that the judgment of Ram Kishor Arora (Supra) was delivered on 15.12.2023, and the present accused was arrested on 02.02.2023. On such count, the present accused is not entitled to the benefit of the ratio laid down in the cases of Prabir Purkayastha (Supra), Vihaan Kumar (Supra) and also in Pankaj Bansal (supra). 5.1. Mr. Borthakur further submits that the aforesaid proposition of law is accepted by a Co-ordinate Bench of this court, vide order dated 09.05.2025, in Page No.# 4/11 BA No. 1100/2025 and also in BA No. 288/2025, dated 24.04.2025. Under such circumstances, Mr. Borthakur has contended to dismiss the petition. 6. In reply to the submission of Mr. Borthakur, learned Additional Public Prosecutor, Mr. Ahmed, learned counsel for the accused, by referring to a decision of Hon’ble Supreme Court in the case of Harikishan vs. The State of Maharashtra, in Criminal Appeal No. 189/1961, submits that the law in respect of communication of the ground of arrest is well settled long back in the year 1962 and as such, the decision of Hon’ble Supreme Court in the case of Ram Kishor Arora (Supra) cannot be relied upon in refusing to give effect to the order of Hon’ble Supreme Court in the cases of Prabir Purkayastha (Supra) and Vihaan Kumar (Supra) retrospectively. 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the scanned copy of the record received from the learned trial Court and also the case laws referred by learned counsel for both the parties. 8. The basic facts of this case are not disputed and from Annexure – 9, page No. 66 of the petition, it appears that notice was issued to the accused at the time of his arrest on 02.02.2023, and nowhere in the aforesaid notice, the ground of his arrest was indicated. Perusal of the Annexure – 10 & 11, at page No. 67 & 68 respectively, of the present petition, it appears that the ground of arrest has never been communicated to the accused. 9. The notice given to the accused under Section 50 of the Cr.P.C., on the same day, it is stated as under:- “You are hereby informed that you have been arrested in Page No.# 5/11 connection with above reference case, the section of law of the case is/are not bailable for Police. Hence needed to be arrested and will be forwarded to the Hon’ble Court. You can move of bail before the Hon’ble Court.” 10. It also appears from the arrest memo, inspection memo and the also from the notices under Sections 50 and 50-A Cr.P.C. that the ground of arrest has not been communicated, though the case number i.e. Dhubri P.S. Case No. 345/2023, under Section 22(c) of the NDPS Act is mentioned in the same. 11. Further, it appears from the status report that the charge under Sections 22(c)/27/29 of the NDPS Act was framed on 05.02.2024, and since then, trial is going on. 12. It is well settled in the case of Vihaan Kumar (supra) that when an accused claims a violation of Article 22(1), the burden shifts to the investigating officer to prove compliance. In the case in hand, from a perusal of the record this court is unable to find any document to show communication of the ground of arrest to the accused in writing, as mandated under Article 22(1) of the Constitution of India and also in the decisions referred herein above. 13. It is also to be noted here that the effect of non-communication of the ground of arrest is well settled by Hon’ble Supreme Court in the cases of Prabir Purkayastha (supra), Pankaj Bansal (supra), Vihaan Kumar (supra). In the case of Vihaan Kumar (supra) Hon’ble Supreme Court has, in no uncertain terms, stated that if an arrested person is not informed of the reasons for arrest in a language they understand, then the arrest becomes illegal. It is also held that failure to inform the grounds of arrest to the accused’s relatives or nominated persons, under Section 50 of the Cr.P.C. (Now Sec 47 of BNSS,2023) also renders the arrest illegal. Page No.# 6/11 14. In the case of Vihaan Kumar (supra) Hon’ble Supreme Court has also held that for any such violation, they must be released from custody. It also went on to hold that even if statutory restrictions exist, constitutional violations override such restrictions, and courts can grant bail in such cases. 15. A Constitutional Bench of Hon’ble Supreme Court, in the case of Harikishan (Supra), in paragraph No. 11, it appears as under: - “11. It has not been found by the High Court that the appellant knew enough English to understand the grounds of his detention. The High Court has only stated that he has studied up to 7th Hindu Standard, which is equivalent to 3rd English Standard". The High Court negatived the contention raised on behalf of the appellant not on the ground that the appellant knew enough English, to understand the case against him, but on the ground, as already indicated, that the service upon him of the Order and grounds of detention in English was enough communication to him to enable him to make his representation. We must, therefore, proceed on the assumption that the appellant did not know enough English to understand the grounds, contained in many paragraphs, as Indicated above, in order to be able effectively to make his representation against the Order of Detention. The learned Attorney-General has tried to answer this contention in several ways. He has first contended that when the Constitution speaks of communicating the grounds of detention to the detenue, it means communication in the official language, which continues to be English; secondly the communication need not be in writing and the Page No.# 7/11 translation and explanation in Hindi offered by the Inspector of Police, while serving the Order of Detention and the grounds, would be eriough compliance with the requirements, of the law and the Constitution; and thirdly, that it was not necessary in the circumstances of the case to supply the grounds in Hindi, in our opinion, this was not sufficient compliance in this case with the requirements of the Constitution, as laid down in clause (5) of Art. 22. To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfill the requirements of the law. As has been explained by this Court in the case of The State of Bombay v. Atma Ram Sridhar Vidya, [1951] S.C.R. 157 clause (5) of Art. 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. Page No.# 8/11 In this case the grounds are several, and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates Naturally, therefore, any oral transaction or explanation given by the police officer serving those on the detenue would not amount to communication, in this contest, muat mean bringing home to the detenue effective knowledge of the facts and circumstance on which the Order of Detention is based.” 16. It is fact that the aforementioned proposition was laid down in the case of an accused, who was kept under detention under Section 3(1)(a)(ii) of the Preventive Detention Act, 1950, but the said proposition is equally applicable in case of accused under other penal statute also as Hon’ble Supreme Court has discussed about Article 22(1) of the Constitution of India in the said case. And as such, this Court is of the view that the ratio laid down in the aforesaid case also strengthened the submission of Mr. Ahmed, learned counsel for the accused. 17. Now coming to the submission of Mr. Borthakur, learned Additional Public Prosecutor, I find that in the case of Ram Kishor Arora (supra), Hon’ble Supreme Court in paragraph No. 23, has dealt with the issue as under: “23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 of PMLA, directed to furnish the grounds of arrest in writing as a matter of course, "henceforth" meaning thereby from the date of the pronouncement of the judgment. The very use of the word "henceforth" implied that the said requirement of furnishing grounds of arrest in Page No.# 9/11 writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the Appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary "henceforth" that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal (supra).” 18. Though, Mr. Borthakur, the learned Additional Public Prosecutor, on the basis of the decision Hon’ble Supreme Court in the case of Ram Kishor Arora (supra), submits that the decisions in Prabir Purkayastha (supra), Pankaj Bansal (supra) and Vihaan Kumar (supra), cannot be given retrospective effect, yet it is well settled that judicial decisions are presumed to have retrospective application unless mentioned otherwise. 19. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Kanisk Sinha & Anr. vs. The State of West Bengal and Anr. Special Leave Petition (Criminal) No. 8609- Page No.# 10/11 8614, wherein it has been held as under: - “Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively.” 20. Though in the case of Pankaj Bansal (supra) the word ‘henceforth’ was used, meaning thereby from the date of the pronouncement of the judgment the law laid down therein would be applicable, and on such count Hon’ble Supreme Court has refused to give effect of the same retrospectively in the case of Ram Kishor Arora (supra) and on such count the submission of Mr. Borthakur has some force, yet there is no such direction in the case of Vihaan Kumar (supra), regarding prospective effect of the said decision. That being so, in view of the proposition of law, so laid down in the case of Kanisk Sinha & Anr. (supra), judicial decisions are presumed to have retrospective application unless mentioned otherwise. That being so, this Court is unable to record concurrence with the submission of Mr. Borthakur, the learned Additional Public Prosecutor. 21. Besides it appears that the accused is also behind the bar since 02.09.2023. Examination of witnesses is still going on. 22. Under the given facts and circumstances, this court is inclined to allow the accused to be enlarged on bail. It is provided that on furnishing a Page No.# 11/11 bond of Rs. 1,00,000/- with one surety of like amount, to the satisfaction of the learned Special Judge (Additional), Shribhumi, the accused be enlarged on bail. 23. However, the learned trial Court is granted liberty to impose any other condition so as to ensure attendance of the accused during the trial. 24. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant