Page No.# 1/8 GAHC010094222025 2025:GAU-AS:5544 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1414/2025 SHAJAHAN ALI SK @ SIRAJUL ISLAM AND ANR. S/O FALU SHEIKH R/O KATLAMARI PT.IV, P.O. DHUBRI P.S.FAKIRGANJ DIST. DHUBRI, ASSAM PIN-783301 2: SURAT JAMAL S/O FALU SHEIKH R/O KATLAMARI PT.IV P.O. DHUBRI P.S.FAKIRGANJ DIST. DHUBRI ASSAM PIN-78330 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, MR. SAYED SALIM AHMED,MS R DEKA,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 05.05.2025 Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. S. S. Ahmed, learned counsel for the petitioners. Also heard Mr. D. P. Goswami, 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/petitioners, who have been arrested in connection with Dhubri P. S. Case No. 156/2025, registered under Sections 22(c)/29 of NDPS Act. 3. It is submitted by Mr. Choudhury, learned Senior Counsel for the petitioners, that due to a matrimonial dispute between the elder brother of the petitioners and his wife, the present case has been falsely lodged against them. This occurred when they visited the elder brother's wife’s house to settle the matrimonial dispute. The accused/petitioners were arrested in connection with this case on 23.03.2025 and have been in custody since then, and thus, the IO got sufficient time for their custodial interrogation. Moreover, the petitioner is ready and willing to cooperate with the IO in the further investigation of the case, if granted bail. 4. He further submitted that the ground for arrest was not properly mentioned in the notice issued under Sections 47/48 of the BNSS, nor in the Arrest Memo or Inspection Memo provided to the petitioners at the time of their arrest. He also submitted that the notice issued under Section 47 of BNSS cannot be considered a proper ground for arrest, as it is similar to the ground Page No.# 3/8 mentioned in the Arrest Memo. Additionally, no ground for arrest was mentioned in the notice issued to the family members of the petitioners under Section 48 of BNSS. 5. He further submitted that the grounds of arrest were communicated to the petitioner by issuing a notice under Section 47 of the BNSS. However, those grounds appear to have been considered merely as formalities, rather than fulfilling the statutory requirements, as clearly interpreted by the Hon’ble Apex Court in landmark cases. The IO has mechanically stated the reasons for arresting the petitioners, and those reasons do not disclose any substantive connection to the subject matter of the case or the role of the petitioner in the alleged incident. 6. In support of his submissions, Mr. Choudhury, learned Senior Counsel, relies on the judgment passed by the Hon’ble Apex Court in Vihaan Kumar vs. State of Haryana, reported in 2025 SCC OnLine SC 269. In the second part of the said judgment, it was specifically held that requirement of communicating the ground of arrest to family members/relatives or such other person of the accused/petitioners as may be disclose or nominated by the accused for the purpose of giving such information as provided under Section 50A [corresponding to Section 48 of BNSS] may be noted, this is an addition of the requirement as provided under section 50(1) of Cr.P.C. He further emphasized on paragraph Nos. 2 & 3 of the second part of the said judgment which read as under: “2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been Page No.# 4/8 succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the Cr.P.C (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the Cr.P.C. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the Cr.P.C. 3. The purpose of inserting Section 50A of the Cr.P.C, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary Page No.# 5/8 opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualizing the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.” 7. He also 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. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notices under Section 47/48 BNSS 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. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, submits that the contraband was recovered from the conscious possession of the accused/petitioners. Although the accused/petitioners have raised certain matrimonial disputes, the fact remains that the recovery was made from them. He further submits that the case is still at the investigation stage, and more persons are yet to be booked in connection with this case, as it involves organized crime. He further contends that no such ratio, as claimed by the Page No.# 6/8 petitioner, has been laid down by the Hon’ble Apex Court in the case of Vihaan Kumar (supra) with regard to the communication of the grounds of arrest. 9. He further submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioners on bail at this stage. 10. In response, Mr. Choudhury, learned Senior counsel for the petitioner, submits that “information of arrest” and “grounds of arrest” are distinct requirements. In the present case, there was no communication of the grounds of arrest to the petitioner’s family members, relatives, or friends. The communication made was merely an intimation of arrest, devoid of any mention of the grounds, thereby vitiating the arrest itself. 11. After hearing the submissions made by the learned counsel for both sides, it is observed that although some grounds of arrest were mentioned in the notice under Section 47 of the BNSS, admittedly, no such grounds were stated in the notice issued under Section 48 of the BNSS, which is a mandatory requirement. The non-furnishing of the grounds of arrest to the family members of the accused/petitioners amounts to a violation of Articles 21 and 22(1) of the Constitution of India. Page No.# 7/8 12. In the case of Vihaan Kumar (supra), the Hon’ble Apex Court clearly held that “the requirement of informing the person arrested on the grounds of arrest is not merely a formality, but a mandatory constitutional requirement under Article 22 of the Constitution.” 13. From the foregoing discussion, it is evident that the grounds of arrest were not communicated to the friends, relatives, or family members of the accused/petitioners. Considering this aspect of the matter, and noting that the IO got ample opportunity to interrogate the petitioner while in custody, I find it to be a fit case to enlarge the accused/petitioners on bail. 14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Chief Judicial Magistrate, Dhubri, the accused/petitioners, namely, Shajahan Ali Sk @ Sirajul Islam and Surat Jamal, be enlarged on bail, subject to the following conditions: (i) that the petitioners shall make themselves available for interrogation by the Investigating Officer as and when required; (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 Chief Judicial Magistrate, Dhubri; and (iv) that the petitioners shall not leave the jurisdiction of the learned Page No.# 8/8 Chief Judicial Magistrate, Dhubri, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant