Page No.# 1/11 GAHC010109312025 2025:GAU-AS:7806 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1670/2025 HAOPU SINGSON S/O- LATE THANGA SINGSON, R/O- VILLAGE LEIJANGKHOPI, P.S- TULIBONG, DIST- CHURACHANDPUR, MANIPUR VERSUS THE STATE OF ASSAM REP BY PP ASSAM Advocate for the Petitioner : S K DAS, A GHOSAL,J SINGPHO,MR. M BISWAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 13-06-2025 Heard Mr. M. Biswas, the learned counsel for the petitioner. Also heard Mr. M.P. Goswami, the learned Additional Public Prosecutor appearing on behalf of the State respondent. Page No.# 2/11 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested on 12.09.2023 in connection with NDPS Case No. 03/2024 corresponding to North Guwahati P.S. Case No. 111/2023 registered under Sections 21(C)/ 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, which is pending before the Court of learned Sessions Judge, Kamrup, Amingaon. 3. Scanned copy of the case record has already been received. Perused the same. 4. It is submitted by Mr. Biswas that the present accused/petitioner is innocent and got arrested in connection with the case on 12.09.2023 only on suspicion and thus he is in custody since more than 1 year 9 months. Charge- sheet has already been filed on 09.01.2024. Accordingly, charge is also framed on 28.02.2024. Total numbers of prosecution witnesses are 9 and out of which 3 witnesses have already been examined by the prosecution. There was no recovery of contraband from conscious possession of the accused/petitioner. Considering the period of incarceration, the petitioner may be enlarged on bail. However, he is a permanent resident of the addressed locality. He will provide sufficient surety to the satisfaction of the Court, if he is enlarged on bail. Mr. Biswas further submitted that the last witness was examined on 22.03.2024. But, thereafter, in spite of lapse of ten (10) consecutive days, the prosecution could not produce any witness and the next date of evidence is fixed on 07.07.2025 and thus the prosecution will be required considerable period for completion of the trial. 5. Mr. Biswas further submitted that while issuing the Arrest Memo as well as the Notice under Section 50 Cr.PC, there is no ground of arrest communicated to Page No.# 3/11 the present accused/petitioner which is mandatorily required. He also submitted that the family members were also not served with any notice u/s 48A of BNSS intimating grounds of arrest of the petitioner. The non-compliance of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution of India. 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 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. 6. In support of his submissions, Mr. Biswas, 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. 7. Mr. Biswas further submitted that the earlier bail application of the present accused/petitioner was rejected by this Court vide order dated 06.05.2025 in BA No. 964/2025 considering the gravity of the case against the present petitioner. But, the present application for bail is filed by the petitioner on the ground for non-communication of grounds of arrest to the present petitioner and considering this aspect of the case this bail petition may be considered at this stage. Mr. Biswas further submitted that the bail application for co-accused persons has already been considered by the Hon’ble Coordinate Bench of this Court and in one Bail Application No. 1671/2025 also the co-accused of the bail petition is considered by the Hon’ble Coordinate Bench of this Court today i.e. on 13.06.2025. So considering the case of the present petitioner on the same footing, he may be enlarged on bail on the grounds of parity. Page No.# 4/11 8. Mr. Biswas 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 Notice under Section 47 BNSS corresponding to Section 50 Cr.P.C. 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 petitioner is entitled to bail. 9. Mr. Goswami, the learned Additional Public Prosecutor, raised objection and submitted in this regard that the present accused/petitioner is the main kingpin of the entire crime and the I/O thus collected sufficient incriminating material against the present accused/petitioner showing his direct involvement in the alleged offence. 10. Mr. Goswami 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 collected by the I/O during investigation, there cannot be any reason to believe that the present accused/petitioner is not guilty of the alleged offence nor there can be any reasonable believe that he will not repeat similar kind of offence while on bail. More so, he submitted that these kinds of offences are very grave in nature as it mainly affects the young people in the society. 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. Page No.# 5/11 11. Mr. Goswami further submitted that the communication of written grounds of arrest was first considered by the Hon’ble Supreme Court in the case of Pankaj Bansal v. Union of India, reported in (2024) 7 SCC 576 and the judgment and order was passed on 03.10.2023 wherein it was held that the communication of grounds of arrest in written form is mandatory. But, the judgment passed in Pankaj Bansal (supra) was prospective in nature where the written communication of grounds of arrest is applicable to the arrestee only after the order passed by the Hon’ble Supreme Court in case of Pankaj Bansal (supra) and there was no retrospective effect to the said judgment. Further he submitted that in case of Ram Kishore Arora v. Directorate of Enforcement, reported in (2024) 7 SCC 599, in para 23 of the said judgment it has been held that:- “23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 of PMLA, directed to furnish the grounds of arrest in writing as a matter of course, “henceforth”, meaning thereby from the date of the pronouncement of the judgment. The very use of the word “henceforth” implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the Appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary “henceforth” that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal (supra).” 12. Mr. Goswami accordingly submitted that the Hon’ble Coordinate Bench Page No.# 6/11 also considered that the arrest which has been made prior to the judgment passed in Pankaj Bansal (supra) i.e. 03.10.2023 there is no mandatorily required provision for furnishing or communicating the grounds of arrest in written form. Mr. Goswami further submitted that in the present case also the present petitioner arrested only on 12.09.2023 i.e. prior to the date of judgment in Pankaj Bansal (supra). 13. Mr. Biswas, the learned counsel for the petitioner submitted in this regard that the issue of prospective as laid by the learned Additional Public Prosecutor and relying in the case of Pankaj Bansal (supra), it is submitted that the judgment passed by the constitutional Court always as the retrospective effect unless the judgment itself specifically speaks that the judgment will operate prospectively. In that context Mr. Biswas also relied on a decision of Hon’ble Supreme Court passed in Special Leave Petition (Criminal) Nos. 8609- 8614 of 2024 [Kanishk Sinha & Anr. Vs. The State of West Bengal & Anr.], wherein in paragraph No. 3 of the judgment, it has been observed as under: “… Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many.” 14. After hearing the submissions made by the learned counsel for both sides, Page No.# 7/11 I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 50 Cr.PC. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which they were arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to their 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. 15. 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, 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 Page No.# 8/11 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.” 16. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court has held as 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.” Page No.# 9/11 17. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.PC 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 of Cr.P.C. corresponding to Section 47 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, 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. 18. 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 Page No.# 10/11 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.” 19. From the records, it is seen that till date, the prosecution could examine only 3 (three) numbers of witnesses out of 9 (nine) numbers of cited witnesses. But, thereafter, in spite of lapse of ten (10) consecutive days, the prosecution could not produce any witness and thus the prosecution will be required considerable period for completion of the trial and in the same time, it is also an admitted fact that the accused/petitioner is behind the bar for last more than 1 (one) year & 9 (nine) months. 20. In view of the entire facts and circumstances as discussed above, viz-a-viz non-mentioning of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.PC and considering the period of incarceration already undergone by the accused/petitioner as well as the considering the view expressed by the Hon’ble Supreme Court in the case laws referred to hereinabove, it is considered that the judgment of the Constitutional Court can be considered of having a retrospective effect unless it is specifically mentioned to the judgment itself regarding the prospective nature. Accordingly, this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 21. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/- (Rupees One lakh only) with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Sessions Judge, Kamrup, Amingaon, the accused/petitioner, namely, Haopu Page No.# 11/11 Singson, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Sessions Judge, Kamrup, Amingaon, 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 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 Sessions Judge, Kamrup, Amingaon; and (iv) that the petitioner shall not leave the jurisdiction of the learned Sessions Judge, Kamrup, Amingaon, without prior permission. 22. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant