Page No.# 1/8 GAHC010092472025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1382/2025 ABDUL KAIM HAZARI S/O-LATE ABDUL MALIK HAZARI, R/O-RAMNAGAR PART-IV, P.S SILCHAR, DIST-CACHAR,ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP,ASSAM Advocate for the Petitioner : MR. P K ROYCHOUDHURY, MS. J GHOSH,MR. JUNM LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : --02.05.2025 Heard Mr. P.K. Roychoudhury, the learned counsel for the petitioner. Also heard Mr. D.P. Goswami, the learned Additional Public Prosecutor appearing on behalf of State respondent. Page No.# 2/8 2. This is an application under Section 483 of the BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Silchar P.S. Case No. 1149/2024 corresponding to G.R. No. 2200/2024, under Sections 22(C)/27(A)/29 of the NDPS Act, 1985. 3. It is submitted by Mr. Roychoudhury, the learned counsel for the petitioner, that the present accused/petitioner was arrested in connection with this case on 03.12.2024 and since then he is in custody. There was no recovery from his conscious possession and the accused/petitioner was arrested on the basis of the statement made by the co-accused. 4. Further he submitted that the grounds of arrest were not communicated to the present petitioner while issuing the Arrest Memo, Inspection Memo and Notice under Section 47 of BNSS as well as under Section 48 BNSS, which itself is 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. He further submitted that while issuing the Arrest Memo, viz-a- viz the Notice, it is seen that except the name of the accused and the case number, nothing has been mentioned in the Notices as well as in the Arrest Memo as to the grounds of arrest neither to the petitioner nor to his family members. Further he submitted that as per Section 47 of BNSS, the person arrested should be informed about the grounds of arrest and the right to bail along with full particulars of the offence for which he got arrested. 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 Page No.# 3/8 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. 5. In support of his submissions, Mr. Roychoudhury, learned counsel for the petitioner, has 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. 6. 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. 7. Mr. Goswami, the learned Additional Public Prosecutor, submitted in this regard that it is an admitted fact that while issuing the Arrest Memo as well as the Notice under Section 47 of BNSS, the grounds of arrest were not intimated to the accused/petitioner. He also admitted that in the Notices as well as in the Arrest Memo, except the name of the present petitioner and the case number, other particulars were not mentioned. However, he submitted that the case is of commercial quantity and the case is still under the process of investigation and hence, he raised objection in granting bail to the accused/petitioner. Page No.# 4/8 8. 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 Notices issued to the present accused/petitioner. It is accordingly seen that while issuing the Arrest Memo as well as the Notices, 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 and the signature of the accused/petitioner was also obtained in those annexures, but admittedly there is no mention about the grounds of arrest in the Arrest Memo as well as 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. 9. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47(1) of BNSS, 2023, corresponding to Section 50(1) of Cr.P.C., rendering the arrest and subsequent remand of the accused/petitioner invalid. He further submitted that 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. Page No.# 5/8 10. 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 No. 19 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 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.” Page No.# 6/8 11. 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.” 12. In the instant case also, from the discussion made above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as the Notices 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, though the signature of the accused/petitioner was obtained in the Arrest Memo as well as the Notices issued on him. 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, Page No.# 7/8 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. 13. In view of the entire discussions made above and without going by the further detail on the merit of the case, this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 14. 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 (NDPS), Cachar, Silchar, the accused/petitioner, namely, Abdul Kaim Hazari, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case; (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 Page No.# 8/8 the Court or to any police officer; (iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge (NDPS), Cachar, Silchar; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge (NDPS), Cachar, Silchar, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant