Page No.# 1/8 GAHC010113232025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1776/2025 YEAHIYA AHMED S/O ABDUL CHOBUH R/O VILL- KHUNDRAKANDI, P.O. KALIGANJ BAZAR, P.S. KARIMGNAJ, DIST. KARIMGANJ, ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M BISWAS, MR. A BHARDWAZ,J SINGPHO Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 24.06.2025 Heard Mr. M. Biswas, learned counsel for the accused and also heard Mr. P. Borthakur, learned Additional Public Prosecutor, for the State respondent. 2. This application, under Section 483 of the Bhartiya Nagarik Surakshya Sanhita, is preferred by the accused, namely, Yeahiya Ahmed, who has been languishing in jail Page No.# 2/8 hajot, in connection with NDPS Case No. 132/2025, arising out of Hatigaon P.S. Case No. 255/2024, under Section 21(b)/22(c)/29 of NDPS Act, 1985 pending before the Court of learned Additional Sessions Judge, No.3, Kamrup (M), for grant of bail. 3. It is to be noted here that aforementioned case has been registered on the basis of a F.I.R lodged by SI (P) Bibek Bezbaruah, of Dispur P.S. on 13.11.2024. 4. The essence of allegation, against the present accused is that acting on a tip off, the informant, along with other staff, conducted search in the Central Guest House located at Naharani Path, under Hatigaon Police Station and apprehend four persons, namely, Md. Hasu Miya, Amina Khatun, Akmal Hussain and Yeahiya Ahmed (the present accused) and recovered ten thousand suspected Yaba tablets and eleven grams of suspected heroin from their possession and thereafter, seized the same in presence of witnesses, preparing seizure list. 5. Mr. Biswas, learned counsel for the accused submits that this is the third bail application, preferred by the accused and the first and second bail applications were dismissed by this Court vide order dated 21.01.2025, in Bail Appln No. 3896/2024 and vide order dated 11.03.2023 in Bail.Appln No.412/2025. Mr. Biswas, also submits that the ground for filing this third bail application is that while effecting arrest of the accused, by the arresting police officer, though the grounds of arrest were communicated to him, yet the same were not applicable in the case of the present accused and also in terms of the decision of Hon’ble Supreme Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and in respect of Vihaan Kumar Vs. State of Haryana and Another reported in 2025 SCC OnLine SC 269 and since the ground of arrest is not properly communicated to the accused, in consonance with order of the Hon’ble Supreme Court in the aforementioned two cases, arrest of the accused has to be held as illegal and on such count, he is entitled to bail. Therefore, Mr. Biswas, has contended to Page No.# 3/8 allow this bail application. 6. Per contra, Mr. Borthakur, learned Additional Public Prosecutor, submits that the accused has enclosed the notice issued to him as Annexure-8, at Page No. 38, of the application and perusal of the same, clearly indicates that the said notice issued to the accused by the I.O. mentioning clearly therein the ground of arrest and as such, the mandate of Article 22(1) of the Constitution of India, and also the direction issued in the case of Vihaan Kumar (supra) and Prabir Purkayastha (supra) stands complied with. Further Mr. Borthakur, submits that the contraband substances, so recovered from the possession of the accused are of commercial quantity and as such, the accused has to satisfy the twin requirements of Section 37 of the NDPS Act, and the same could not be satisfied herein this case and therefore, Mr. Borthakur, has contended to dismiss the application. 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the record and also the decisions referred by the learned counsel for both the parties. 8. Article 22(1) of the Constitution of India, provides for communication of ground of arrest at the time of causing arrest of a person and the above requirement, has been dismissed and interpreted in number of cases by Hon’ble Supreme Court including the cases referred by Mr. Biswas, learned counsel for the accused and referred herein above. 9. In the case of Vihaan Kumar (supra), Hon’ble Supreme Court concluded as under: 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 Page No.# 4/8 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 to grant ball even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established. Page No.# 5/8 10. In the said decision, it is also held that the requirement of communicating the ground 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 the arrest may be rendered illegal. 11. In the case in hand, a perusal of the Page No.38, Annexure-8 of the application, that the said Annexure is a notice issued to the accused Yeahiya Ahmed, under Section 47 of B.N.S.S, 2023, for proper adjudication of the question raised in this application, we would like to reproduce the said notice as under:- To, Yeahiya Ahmed, 24 years S/O- Abdul Chobuh Vill- Khundrakandi, PS-Karimganj, Dist- Karimganj, Assam You are hereby informed that you have been arrested in connection with above reference case. Since, in the case Non-Bailable to police, so you are forwarded to the Honourable Court on 13/11/2024, You may submit petition before Hon'ble Court, for your bail. Grounds of Arrest: a) The arrested accused persons are the FIR named accused. b) During the course of investigation total 1 nos. of soap case containing powdery substance suspected to be heroin weighing about 11 grams and also 10000 (Ten Thousand) yaba Tablets have been recovered and seized from the possession of the arrested accused persons in presence of available witnesses. c) Sufficient evidence and witnesses have been found against the arrestees. Page No.# 6/8 d) The arrested accused persons admitted their involvement in this case. 12. A perusal of the aforementioned ground, it appears that in ground No. ‘b’, the arresting authority has clearly mentioned that during the course of investigation total 1 nos. of soap case, containing powdery substance suspected to be heroin, weighing about eleven grams and also ten thousand yaba tablets have been recovered and seized from the possession of the arrested accused persons in presence of available witnesses. It is to be noted here that the arrested accused person means and includes the present accused also. So, from a plain reading of the ground No. ‘b’, it indicates that the same amounts to communication of the ground that, on account of possession of recovery of eleven grams of Heroin and ten thousand yaba tablets from him and from other accused persons, he has been arrested. 13. Mr. Biswas, learned counsel for the accused however referring to observation made by this Court in paragraph No.7, of the order dated 11.03.2025, in B.A. No. 412/2025, submits that in the said paragraph, this Court was pleased to observe that “perusal of the case diary reveals that the I.O. has collected sufficient incriminating materials against the present accused. It is a fact that no contraband substances were recovered from the possession of the present accused as per seizure list i.e. Annexure Nos. 3 & 4. But, from the materials collected so far in the case diary, it is apparent that he accompanied Akmal Hussain for selling drugs at Central Guest House on payment on Rs. 5,000/- and the said contraband substances were recovered from the possession of the said Akmal Hussain” and in view of the above, the ground of arrest mentioned in serial No. ‘b’, of the Annexure-8, appears to be incorrect and as such, the same cannot constitute communication on the ground of arrest in the real sense and as discussed in the case of Vihaan Kumar (supra) in paragraph No. 13, and in view of the observation made in paragraph No. 14 of the said case, the requirement of informing the person arrested about the ground of arrest is not a formality, but a mandatory constitutional requirement as provided under Article 22 of Part 3 of the Page No.# 7/8 Constitution. 14. Mr. 14. Mr. Borthakur, learned Additional Public Prosecutor, however submits that whether the contraband substances mentioned in serial No. ‘b’, in the notice under Section 47 of the B.N.S.S, 2023, is correct or incorrect has to be determined at the end of trial, after recording evidence and whatever observation made in paragraph No.7 in B.A. No. 412/2025, this Court was of the prima facie view that, this cannot be the ground for enlarging the accused on bail. 15. There appears to be substance in the submission of Mr. Borthakur, learned Additional Public Prosecutor. The observation made in paragraph No.7, by this Court, it has been indicated that the involvement of the accused with the offence alleged and the offence relates to recovery of eleven grams of powdery substance suspected to be Heroin and ten thousand yaba tablets. At this stage, in absence of any evidence, this Court is not in a position to ascertain the correctness of the ground of arrest at serial No. ‘b’. 16. It is also to be noted here that the case was registered under Section 21(b)/22(c)/29 of NDPS Act, and even for the sake of argument, it is accepted that no contraband substance was recovered from his possession, yet the angle of conspiracy under Section 19 of the NDPS Act to commit the crime with the arrested accused persons cannot be ruled out. 17. Moreover, the contraband substances so recovered from the possession of the accused persons are of commercial quantity and there is a requirement under Section 37 of the NDPS Act, that the accused will not commit any offence while on bail and he is not guilty of the offence. From the materials placed on record, and also from the submissions of learned counsel for both the parties, this Court is unable to derive any satisfaction that the accused is not guilty of the offence and he will not commit any offence while on bail. 18. Under given facts and circumstances, this Court is of the view that this is not a Page No.# 8/8 fit case where the privilege of bail can be granted to the accused and accordingly, this bail application stands dismissed. JUDGE Comparing Assistant