Page No.# 1/6 GAHC010094442025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1421/2025 BIJOY DAS AND ANR S/O SANKAR CH. DAS R/O VILL- SURYAMANI NAGAR, P.S.AMTALI DIST. WEST TRIPURA, TRIPURA, PIN-799130 2: RAJKUMAR SARKAR S/O FUL KISHOR SARKAR R/OVILL-BAJAR TILA UTTAR KALAM CHOWRA P.S.KALAM CHOWRA DIST.SHIPAJANA, TRIPURA PIN-79910 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. SANU HUSSAIN, MR. SANU HUSSAIN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 26.05.2025 Heard Mr. S. Hussain, learned counsel for the petitioners. Also heard Ms. Page No.# 2/6 S. H. Bora, learned Additional Public Prosecutor, Assam. 2. By filing this second bail application under Section 483 BNSS, 2023 the petitioners, namely, Bijoy Das and Rajkumar Sarkar, have sought for bail in connection with Special 480/2024 arising out of Golakganj PS Case No. 40/2024 registered under Sections 20(b)(ii)(c) of NDPS Act, pending in the court of learned Special Judge (Additional), Dhubri. 3. The prosecution case in brief is that on 29.02.2024, an FIR has been lodged stating inter alia that on receipt of information from reliable source over telephone that a large quantity of suspected cannabis (ganja) were being transported from Guwahati in a Maruti Baleno Car bearing No. TR-01-BH-0787 and one new TATA Nexon Car without number plate. Accordingly, a naka checking was conducted and the aforesaid Baleno car was intercepted along with two persons i.e. the present petitioner who was the driver of the said car and another co-passenger Raj Kumar Sarkar. When the police team about to search the Maruti Baleno car, another vehicle i.e. TATA Nexon car without number plate coming from the same direction, and when the police has given signal to stop, the driver of the said vehicle disobeyed the signal and fled away from the car throwing the car key to some other place. However, the police team has apprehended the driver of the said vehicle after a chase. On being searched the Maruti Baleno car, 4 (four) packets of ganja were recovered and from TATA Nexon vehicle, 42 nos. packets of suspected ganja were found. Thereafter, the said recovered contraband items were seized and the accused persons were arrested and a case was registered vide Golakganj P.S Case No.40/2024. 4. The learned counsel for the petitioners has submitted that the petitioners are no way involved in the alleged offence. It is also submitted that the Page No.# 3/6 accused/petitioners have been languishing in judicial custody for last 1 year 2 months since their arrest on 01.03.2024. 5. It is further submitted by the learned counsel for the petitioners that at the time of arrest of the accused/petitioners, notices under section 50 Cr.P.C. corresponding to Section 47 of BNSS were served to them wherein the grounds of arrest have not been mentioned which violates their fundamental rights guaranteed under Article 22(1) of the Constitution of India, which resulted the arrest of the petitioners as illegal and therefore, they should no longer be retained in custody and be released on bail for the interest of justice. 6. Per contra, Ms. Bora, learned Additional Public Prosecutor has submitted that the first bail application of the petitioners was rejected on merit of the case as the commercial quantity of ganja was recovered from the alleged vehicle. As such, Section 37 will come into play. However, she has admitted that no ground of arrest has been mentioned in the arrest memo or notices issued to the petitioners under Section 50 Cr.P.C. (S 47 of BNSS). 7. Having heard the learned counsel for the parties and on perusal of the trial court records, it is not in dispute that the notices served to the petitioners u/s 50 Cr.P.C as well as arrest memo do not show any grounds of arrest at the time of arrest of the petitioners. 8. In the case of Vihaan Kumar vs. State of Haryana, reported in 2025 SCC Online SC 269 will remain in force, wherein the Hon’ble Apex Court has referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra) and the Court held as follows – “28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as per the case may be, must be communicated in writing. Page No.# 4/6 Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned. 29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Article 22(1) and Article 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.” 9. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934, wherein it has been categorically held that the law laid down in the case of Pankaj Bansal (supra) would be squarely applicable in cases under the UA (P) Act or for that matter any other offences. The accused has fundamental and 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 and non-supply of written grounds of arrest to the arrested person would vitiate the arrest even if the case has been charge-sheeted. 10. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Subhash Sharma, it was held as follows– “Once a court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. Therefore, when arrest is illegal or vitiated, bail cannot be denied on the grounds of non- fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.” Page No.# 5/6 11. Situated thus, the settled principle of law is that an arrested person must be informed about the grounds of his arrest and detention which is mandatory in nature. Article 22 safeguards the individual against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. In the instant case, there is no reflection in Section 50 Cr.P.C. notices/arrest memo served to the petitioners that the accused petitioners were informed about the grounds of their arrest in connection with Golakganj PS Case No. 40/2024. Under such backdrop, this Court by following the observation of the Hon’ble Supreme Court as above, is inclined to grant bail to the petitioners. 12. Accordingly, the petitioners, named above, shall be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) each with two suitable sureties of the like amount each, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Special Judge (Additional), Dhubri. The direction for bail is further subject to the conditions that the petitioners: (a) shall not leave the territorial jurisdiction of learned Special Judge (Additional), Dhubri without prior written permission from him/her; (b) shall regularly attend the trial court and cooperate with the Court for early disposal of the case; and (c) 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. 13. It is pertinent to mention here that the findings of this court that the arrest of the petitioners stand vitiated will not affect the merits of the pending case. Page No.# 6/6 14. The bail application is disposed of accordingly. JUDGE Comparing Assistant