Page No.# 1/5 GAHC010093022025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1399/2025 SAHADUL ISLAM S/O- LATE KHOKA SHEIKH VILL.- JORDANGA PT-II P.S- MANKACHAR DIST- SOUTH SALMARA MANKACHAR, ASSAM. PIN-783135 VERSUS THE STATE OF ASSAM REPRESENTED BY PP, ASSAM Advocate for the Petitioner : MR. A Z AHMED, A. KHALEK Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 21.05.2025 1. Heard learned counsel, Mr. A.Z. Ahmed for the petitioner – Sahadul Islam, who has filed this application under Section 483 of the BNSS, 2023 for prayer of bail as the petitioner is behind bars since 13.08.2024 in connection with Special (N) Case No. 249/2024 (arising out of Mankachar P.S. Case No. 166/2024 u/s 21 Page No.# 2/5 (C)/29 of NDPS Act). 2. It is submitted on behalf of the petitioner that the petitioner has been incarcerated for a prolonged period without proper trial. 10 (Ten) witnesses are enlisted in connection with this case but not a single witness has been examined so far. It is submitted that the grounds of arrest has not been communicated to the petitioner in the manner understood by the petitioner. 3. Annexure-6 (series) is the Arrest Memo which clearly reflects that the grounds of arrest have not been communicated to the petitioner. The petitioner has also drawn the attention of this Court to the trial court records where the notice under Section 47 of the BNSS, reflects that the grounds of arrest has also not been mentioned in a manner understood by the petitioner. 4. The petitioner has also relied on the decision of the Hon’ble Supreme Court in the case of Prabir Purkayastha vs. The State (NCT of Delhi) reported in (2024) 8 SCC 254 wherein it has been observed that: “20. 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 offences 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. 22.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 Page No.# 3/5 fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.” 5. The petitioner has also relied on decision of the Hon’ble Supreme court Vihaan Kumar vs. State of Haryana, reported in 2025 SCC online SC 269 wherein it is has been observed that: “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 requirements 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 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 Page No.# 4/5 to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the Constitution is established.” 6. Heard learned Addl. Public Prosecutor, Mr. K. Baishya, who has raised serious objection and has stated that the petitioner was apprehended during Naka checking and as the contraband was seized from his conscious possession, the petitioner is not entitled to bail on non-communication of grounds of arrest as at that time when the petitioner was on the run, the grounds of arrest could not be communicated to the petitioner as his immediate arrest was inevitable. 7. The petitioner has relied on the decision of the Hon’ble Supreme court in connection with SLP (Crl) No. 17132/2024 and other SLPs in Mihir Rajesh Shah vs. The State of Maharashtra & Anr. wherein vide order dated 22.04.2025 it has been observed that: “3. The question that we are called upon for consideration in the present proceedings is: whether in each and every case, even arising out of an offence under Indian Penal Code, would it be necessary to furnish grounds of arrest to an accused either before arrest or forthwith after arrest. Another question that this Court is required to consider is: whether, even in exceptional cases, where on account of certain exigencies it will not be possible to furnish the grounds of arrest either before arrest or immediately after arrest, the arrest would be vitiated on the ground of non-compliance with the provisions of Section 50 of the Code of Criminal Procedure.” 8. I have considered the submissions at the bar with circumspection. 9. In the light of the decision of the Hon’ble Supreme Court in the case of Prabir Purkayastha (supra) and in the case of Vihaan Kumar (supra), it appears that bail may be granted to the petitioner. 10. Considering all aspects, the petitioner is enlarged on bail of Rs.1,00,000/- Page No.# 5/5 (Rupees One Lakh) with two local sureties of like amount subject to the satisfaction of the learned Trial Court under the conditions that; (i) the petitioner shall refrain from such activities with which he is alleged, (ii) the petitioner shall not exercise threats to the witnesses, and (iii) The petitioner shall not leave the jurisdiction of the Court without prior permission. 11. On breach of any of the bail conditions, the learned Court is at liberty to cancel the bail granted to the petitioner. 12. Send back the Case Diary. JUDGE Comparing Assistant