Page No.# 1/12 GAHC010077502025 2025:GAU-AS:5393 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1185/2025 SHARAFUDHEEN P AND ANR S/O MAJEED, R/O VILL- PALAYIL, AMBALAVYAL, P.S.- AMBALAVAYAL, DIST- WAYANAD, KERALA 2: NAYAZ AHMED S/O BASHER AHAMMED R/O BLOCK NO. 17 A2 STAR APARTMENTS VYMITHI ROAD P.S.- TRIPUNITHURA DIST- ERNAKULAM KERAL VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. Y S MANNAN, MR. T HUSSAIN Advocate for the Respondent : PP, ASSAM, Page No.# 2/12 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER 02.05.2025 Heard Mr. Y.S. Mannan, learned counsel for the petitioners. Also heard Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 for granting regular bail to the petitioners, i.e. Sharafudheen P and Nayaz Ahmed, who have been arrested on 09.06.2024 in connection with NDPS Case No. 340/2024 corresponding to GRPS Case No. 129/2024 registered under Section 20(B)(II) (C)/29 of NDPS Act, pending before the Court of learned Additional Sessions Judge No. 3, Kamrup (Metro), Guwahati. 3. The facts of the case is that the informant lodged an FIR before the GRPS stating that, on 08.06.2024 at around 5:00 AM as directed, the informant along with GRP personnel of Guwahati GRPS left for checking duty at Guwahati Railway Station. After arrival of train no 22502 DN SMVT Bengaluru Express at PF No. 01 of Guwahati Railway Station at around 5:10 A.M., the informant conducted checking of luggage bags of passengers in the coaches of the aforesaid train. In due course of checking in coach No. A-2, when the informant and his staffs were about to check trolley bags of the passengers sitting together on seat No. 16 & 17, the persons became nervous. On enquiry, they disclosed that they boarded the aforesaid train together at Guwahati Railway Station to go to Begaluru, Karnataka. On checking their trolley bags, they found 34 (thirty-four) packets of suspected Cannabis/Ganja wrapped with black colour cello tape inside a black colour trolley bag and 01 (one) packet wrapped with Page No.# 3/12 black colour plastic tape, 01 (one) packet wrapped with brown colour plastic tape each containing suspected Cannabis/ Ganja inside a black colour back pack (Claimate proof 1745e) from the possession of Sharafudheen P. Further, they also found 32 (thirty-two) packets of suspected Cannabis/Ganja wrapped with black colour cello tape inside a blue colour trolley bag and 02 (two) packets of suspected Cannabis/ Ganja wrapped with black colour cello tape inside a blue colour backpack (Maintain Rider 90 litre) from the possession of Nayaz Ahmed. The above said persons revealed that they brought the recovered total 70 packets of suspected Cannabis/Ganja from Shillong, Meghalaya with a common intention to sell the same in Bengaluru, Karnataka. Accordingly, the contrabands were duly seized in presence of witnesses on the spot by preparing separate seizure list from the possession of Nayaz Ahmed, after following all the procedures and formalities. Thereafter, they were arrested on 08.06.2024 and forwarded to the jurisdictional Chief Judicial Magistrate Court on 09.06.2024 and since then, they have been in custody. Accordingly, the instant bail application. 4. Mr. Y.S. Mannan, learned counsel for the petitioners submits that the arresting authority while arresting the petitioners has not informed the grounds of arrest to them and as such, the Fundamental and Constitutional Rights guaranteed to them under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioners are entitled to be released forthwith. 5. Per contra, Ms. S.H. Borah, learned Additional Public Prosecutor by vehemently opposing the prayer of bail submits that notice issued under Section 50 of Cr.PC indicates that information as regards grounds of arrest has been informed to the petitioners at the time of their arrest. 6. I have considered the submissions advanced by the learned counsels for Page No.# 4/12 both the parties and also perused the materials available on record. 7. The primary ground urged in this bail application is as regard non- compliance of the Constitutional and Fundamental Right of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Apt to refer to Article 21 and 22(1) of the Constitution of India, which reads as hereunder:- “21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law. 22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. 8. Perusal of the aforesaid provision, it is apparent that an arrestee has a Constitutional and Fundamental Right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest. 9. In the present case, apt to refer to the notices issued to the petitioners under Section 50 of the Cr.P.C., which reads as hereunder: - “ NOTICE U/S-50 Cr.PC 1. Name – Sharafudheen P 29 yrs S/o Majeed Vill-Palayil, Ambalarayal P.S. Ambalarayal Dist. Wayanad (Kerala) Guwahati GRPS Case No. 129/24, u/s 20(b)(ii)(c)/29 NDPS Act Page No.# 5/12 You are hereby informed that you are arrested in connection with above reference case and the case is non bailable to Police. So, you are forwarded to the Court. You may submit petition before Hon’ble Court for your bail. Signature of arrestee SHARAFUDHEEN P Signature of I/O Illegible … GRPS Dt. 09.06.2024 NOTICE U/S-50 Cr.PC 1. Name – Nayaz Ahammed (38 yrs) S/o Basheer Ahammed R/o Block No. 17A2. Star Appartments Vimithi Road P.S. Tripurnithura Dist. Ernakulam (Kerala) Guwahati GRPS Case No. 129/24, u/s 20(b)(ii)(c)/29 NDPS Act You are hereby informed that you are arrested in connection with above reference case and the case is non bailable to Police. So, you are forwarded to the Court. You may submit petition before Hon’ble Court for your bail. Signature of arrestee NAYAZ AHAMMED Signature of I/O Illegible …. GRPS Dt. 08.06.2024” 10. Perusal of the aforesaid notices indicates that no facts whatsoever constituting the grounds of arrest are reflected in the said notices except that Page No.# 6/12 they have been arrested in connection with the case under reference. 11. Apt also to refer to the petitioners’ memos of arrest, which reads as hereunder: - “ARREST MEMO REF:- Guwahati GRPS Case No. 129/24,u/s20(b)(ii)(c)/29 NDPS Act 1. NAME OF THE ARRESTEE:- Sharafudheen P 29 yrs S/o Majeed Vill-Palayil, Ambalarayal P.S. Ambalarayal Dist. Wayanad (Kerala) 2. DATE AND TIME OF ARREST: 08.06.2024 at 8 PM 3. PLACE OF ARREST : Guwahati GRPS 4. VENUE OF CUSTODY : Guwahati GRPS 5. NAME OF THE RELATIVE/FRIEND AT THE TIME OF ARREST:- W.T. Message Send. 6. IF ANY INJURY FOUND ATT THE TIME OF ARREST: No injury 7. SIGNATURE OF THE ARRESTEE: Sharafudheen P 12. SIGNATURE OF WITNESS: SIGNATURE OF I/O DATE … of GHTY GRPS Dt. 08.06.2024 “ARREST MEMO REF:- Guwahati GRPS Case No. 129/24,u/s20(b)(ii)(c)/29 NDPS Act Page No.# 7/12 1. NAME OF THE ARRESTEE:- Nayaz Ahammed (38 yrs) S/o Basheer Ahammed R/o Block No. 17A2. Star Appartments Vimithi Road P.S. Tripurnithura Dist. Ernakulam (Kerala) 2. DATE AND TIME OF ARREST: 08.06.2024 at 8.00 PM 3. PLACE OF ARREST : Guwahati GRPS 4. VENUE OF CUSTODY : Guwahati GRPS 5. NAME OF THE RELATIVE/FRIEND AT THE TIME OF ARREST:- W.T. Message Sent to his family member. 6. IF ANY INJURY FOUND ATT THE TIME OF ARREST: No injury 7. SIGNATURE OF THE ARRESTEE: NAYAZ AHAMMED.M 12. SIGNATURE OF WITNESS: SIGNATURE OF I/O DATE … of GHTY GRPS Dt. 08.06.2024” 12. Perusal of the memo of arrest also indicates that no information as regards the grounds of arrest is mentioned. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioner: - “INSPECTION MEMO Hon’ble Supreme Court of India WRIT PETITION (CRL) NO. 559 And WRIT PETITION (CRL) NO. 592 Page No.# 8/12 1. Name of Police Officer: SI Acc…. Hussain SK 2. Name and address with full particulars:- Sharafudheen P 29 yrs S/o Majeed Vill-Palayil, Ambalarayal P.S. Ambalarayal Dist. Wayanad (Kerala) 3. Date and Time of arrest : 08.06.2024 at 8 Pm 4. Case Ref/GDE ref etc : Guwahati GRPS Case No. 5. Injuries whether major/minor: No injury mark (external) noted at the time of examination. 6. Doctor where Medical Aids: Dr. S….. Bhattacharyee Provided . SMO, Dhirenpara FRU, 7. Sign of arrestee: SHARAFUDHEEN P Signature of Investigation Officer …….Illegible Of Ghty GRPS Dt. 09.06.2024 “INSPECTION MEMO Hon’ble Supreme Court of India WRIT PETITION (CRL) NO. 559 And WRIT PETITION (CRL) NO. 592 1. Name of Police Officer: SI Acc…. Hussain SK 2. Name and address with full particulars:- Nayaz Ahammed (38 yrs) S/o Basheer Ahammed R/o Block No. 17A2. Star Appartments Vimithi Road Page No.# 9/12 P.S. Tripurnithura Dist. Ernakulam (Kerala) 3. Date and Time of arrest : 08.06.2024 at 8 Pm 4. Case Ref/GDE ref etc : Guwahati GRPS Case No. 129/24,u/s20(b)(ii)(c)/29 NDPS Act 5. Injuries whether major/minor: No sign of external injury noted at the time of examination. 6. Doctor where Medical Aids: Dr. S….. Bhattacharyee Provided . SMO, Dhirenpara FRU, 7. Sign of arrestee: NAYAZ AHAMMED Signature of Investigation Officer …….Illegible Of Ghty GRPS Dt. 09.06.2024” 13. It appears from the materials placed before this Court that there are no materials available in the Case Diary to indicate that the grounds of arrest have been informed to the petitioners at the time of their arrest. 14. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will be a violation of the Constitutional and Fundamental Rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established. 15. Reference is made to the decision of the Apex Court in the case of Page No.# 10/12 Vihaan Kumar Vs State of Haryana and Anr., reported in 2025 SCConline SC 269. Paragraph 21 of the aforesaid decision is reproduced hereunder for ready reference: “21. Therefore, we conclude: a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirernents of Article 22(1); d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1); e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and Page No.# 11/12 f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.” 16. Reading of the aforesaid judgment, it is abundantly clear that the information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts of the case is imparted and communicated effectively to him and non compliance of the same will be a violation of the fundamental rights of the accused guaranteed under Artice 22(1) of the Constitution of India. 17. In the present case, there is nothing in the case diary/case record/materials available on record to indicate that grounds of arrest have been communicated to the petitioners. Therefore, it is absolutely clear that the grounds of arrest was not informed to the petitioners at the time of their arrest, hence, the arrest of the petitioners is totally illegal. As such, the arrest of the petitioners stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioners. Therefore, further detention of the petitioners in the custody is totally unjustified. 18. In view of the aforesaid, this Court is of the considered opinion that the petitioners are liable to be released forthwith. Accordingly, the petitioners named above, shall be released on bail in connection with the aforementioned case on furnishing of a bail bond of Rs. 50,000/-(Rupees Fifty Thousand) each, with two sureties of like amount, provided that one surety has to be a Page No.# 12/12 Government Servant, to the satisfaction of the learned Additional Sessions Judge No. 3, Kamrup (Metro), Guwahati under the conditions: - (a) shall not leave the territorial jurisdiction of jurisdictional Additional Sessions Judge No. 3, under the NDPS Act, without prior written permission from him; (b) shall deposit his Passport/visa, etc if any, in the Court of the learned jurisdictional Additional Sessions Judge No. 3; (c) shall not hamper with the investigation, or tamper with the evidence of the case; (d) 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; and (e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case. 19. In terms of the above, the bail application stands disposed of. JUDGE Comparing Assistant