Page No.# 1/12 GAHC010099702025 2025:GAU-AS:9661 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1551/2025 MOHAMMED SIRAJUDDIN S/O-MD. SALAUDDIN,R/O-KWAKTA KHUMAN WARD NO. 8, P.S- MOIRANG,DIST-BISHNUPUR, MANIPUR VERSUS THE STATE OF ASSAM TOBE REP. BY THE PP, ASSAM Advocate for the Petitioner : MR F A LASKAR, K AHMED Advocate for the Respondent : PP, ASSAM, Page No.# 2/12 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 25.07.2025 Heard Mr. N. H. Barbhuiya, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of the BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been languishing in jail hajot in connection with NDPS Case No. 41/2024, arising out of Dillai P.S. No. 64/2023, registered under Sections 21(c)/29 of NDPS Act, 1985, pending before the Court of learned Special Judge, Karbi Anglong, Diphu. 3. Scanned copy of the case record has already been received and I have perused the same. 4. It is submitted by Mr. Barbhuiya, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. On the day of incident, he only accompanied the driver of the vehicle, who was his friend, and was not aware about the contraband. However, he got arrested in connection with this case on 16.11.2023 and for last 1 (one) year, 8 (eight) months & 10 (ten) days, he has been in custody. More so, the charge-sheet of the case has already been filed and till date, out of 9 (nine) numbers of listed witnesses, only 1 (one) witness has been examined by the prosecution, who was also examined on 16.11.2024 and since then, no Page No.# 3/12 witnesses have been examined. Further he submitted that the Presiding Officer is on leave from 10.04.2025 and the next date for evidence is fixed on 31.07.2025. Thus, he submitted that there is no possibility of completion of trial within a short period as lots of witnesses are yet to be examined by the prosecution and hence, considering his period of long incarceration, the accused/petitioner may be released on bail. He also submitted that the co- accused person, who was also arrested in connection with this case, had already been granted bail by this Court vide Order dated 14.05.2025, passed in Bail Appln. No. 480/2025, and hence, considering the case of the present petitioner on the same footing, he may also be released on bail on the ground of parity. 5. In that context, Mr. Barbhuiya also relied on following decisions: (i) Shariful Islam @ Sarif Vs. the State of West Bengal [Special Leave to Appeal (Crl.) No. 4173/2022] (ii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal (Crl.) No(s). 9860/2023] (iii) Chitta Biswas @ Subhas Vs. the State of West Bengal [Criminal Appeal No(s). 245/2020 (@ SLP (Crl.) No. 8823/20190] (iv) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special Leave to Appeal (Crl.) No(s). 5769/2022] Page No.# 4/12 (v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat [Special Leave to Appeal (Crl.) No(s). 5530/2022] (vi) Md. Muslim alias Hussain Vs. State (NCT of Delhi) [2023 SCC OnLine SC 352] (vii) Amit Kumar Vs. Union of India [Bail Appln. No. 3805/2024, decided on 16.12.2024] (viii) Anil Yadav Vs. Union of India & Anr.[Bail Appln. No. 434/2024, decided on 03.12.2024] (ix) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109] 6. Apart from the ground of long incarceration, Mr. Barbhuiya, learned counsel for the petitioner, further raised the issue that the grounds of arrest were not communicated to the present accused/petitioner in the Arrest Memo as well as in the Notice under Section 50 of Cr.P.C., which itself is in violation of Article 21 & 22(1) of the Constitution of India. It is the mandate of the Constitution of India that the accused/petitioner as well as his family members should be intimated the grounds of arrest. 7. Mr. Barbhuiya, learned counsel for the petitioner, also cited the following decisions of Hon’ble Supreme Court in support of his submissions: Page No.# 5/12 (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. 8. Mr. Barbhuiya 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 as well as in the Notice under Section 50 Cr.P.C. is itself in violation of Article 22(1) of the Constitution of India and hence, he submitted that without even going into the detail of the merit of the case, the present petitioner is entitled to bail. 9. Mr. Baishya, learned Additional Public Prosecutor, submitted in this regard that a huge quantity of contraband was recovered from the possession of the accused/petitioner. He further submitted that it is not a case that the accused was subsequently arrested in connection with this case, but he was caught red handed and the contrabands were recovered from his conscious possession and thus, it could not be stated that the accused/petitioner was not aware about his arrest or the grounds of arrest. More so, there was sufficient compliance of providing the Notice under Section 50 Cr.P.C. as well as the Arrest Memo wherein the accused had put his signature. Accordingly, he submitted that the recovery of the contraband was made from the conscious possession of the Page No.# 6/12 accused/ petitioner. 10. In that context, Mr. Baishya relied on a decision of Hon’ble Supreme Court passed in the case of Kasireddy Upender Reddy Vs. State of Andhra Pradesh & Ors. [Criminal Appeal No. 2808 of 2025 @ SLP (Crl.) No. 7746 of 2025] wherein it is observed that in order to inform the accused for committing certain offence, he must be told of the acts done by him which amounts to the offence and that information may be in a precise manner only to know about the offence alleged to have been committed by him. Paragraph No. 36 of the said judgment reads as under: “36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the warrant itself; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. If he is arrested for committing an offence, he must be told that he has committed a certain offence for which he would be placed on trial. In order to inform him that he has committed a certain offence, he must be told of the acts done by him which amounts to the offence. He must be informed of the precise acts done by him for which he would be tried; informing him merely of the law applicable to such acts would not be enough. (See: Vimal Kishore Mehrotra (supra))” 11. Further Mr. Baishya 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 Page No.# 7/12 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/petitioner on bail at this stage merely on the grounds of the prolonged period of incarceration or the alleged non-communication of the grounds of arrest. 12. After hearing the submissions made by the learned counsel for both sides and also on perusal of the Trial Court Record, it is seen that the I.O. has collected sufficient incriminating materials against the present accused/petitioner, who has been arrested in a case of commercial quantity. As stated above, in a case of commercial quantity, rigor of Section 37 will follow wherein the twin condition has to be satisfied before granting bail to an accused person. But, from perusal of the case record, it is seen that there are sufficient evidence against the present accused/ petitioner and accordingly, there cannot be any reason to believe that the accused is not guilty of the offence and will not repeat or commit the same offence while on bail. 13. Coming to the issue raised by the learned counsel for the petitioner in regards to communication of grounds of arrest, it is seen that while issuing the Arrest Memo as well as Notice under Section 50 Cr.P.C., 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, but admittedly there is no mention about the grounds of arrest in the in the Arrest Memo as well as Notice. 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 Page No.# 8/12 mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police. 14. 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 Nos. 19, 21 & 48 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 Page No.# 9/12 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.” 15. 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.” 16. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notice issued to the present accused/petitioner and his family members under Section 50 Page No.# 10/12 Cr.P.C. 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. So, from the proviso of Section 50 Cr.P.C., 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, 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. 17. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph No. 16 of the said judgment has held as under: “16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.” Page No.# 11/12 18. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the charge- sheet has already been filed finding prima facie materials against the present petitioner and the trial has also commenced. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notice issued to the present accused/petitioner and his family members under Section 50 Cr.P.C. and also considering the fact that the co-accused persons have already been granted bail by this Court vide Order dated 14.05.2025, passed in Bail Appln. No. 480/2025, this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 19. 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, Diphu, Karbi Anglong, the accused/petitioner, namely, Mohammed Sirajuddin, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Diphu, Karbi Anglong, on each and every date to be fixed by the Court; (ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the Page No.# 12/12 facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Diphu, Karbi Anglong; and (iv) that the petitioner shall not leave the jurisdiction of the learned SSpecial Judge, Diphu, Karbi Anglong, without prior permission. 20. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant