Page No.# 1/10 GAHC010117872024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1700/2024 BHOLA SEKH AND ANR. S/O CHHIYATULLA SEKH R/O MOHISURA,P.S. NADIA DIST. NADIA, WEST BENGAL. 2: SAURABH KUMAR S/O SUIL CHOUDHURY R/O DHOLBOJJA P.S. DHOLBOJJA DIST. VAGALPUR BIHAR VERSUS THE STATE OF ASSAM REP BY THE PP , ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 28.03.2025 Heard Mr. B.K. Mahajan, learned counsel for the petitioners. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State. Page No.# 2/10 2. By this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioners namely, Bhola Sekh and Saurabh Kumar, have prayed for bail in connection with SPECIAL (NDPS) Case No. 58 (H) /2024 (arising out of Lumding P.S. Case No. 10/2024) under Section 20(b)(ii)(C)/29 of NDPS Act, 1985, pending in the court of learned Special Judge, NDPS, Hojai. 3. The prosecution case in brief is that on 28.01.2024, an FIR has been lodged before the officer-in-charge, Lumding Police Station, stating inter alia that on the tip of an information, police apprehended the present petitioners in front of Employee’s Union, near Railway Foot Bridge, Lumding and twenty numbers of white colour plastic packets weighing about 44 kg of suspected ganja was recovered and seized and both the petitioners were arrested accordingly. 4. The learned counsel for the petitioners submitted that the petitioners have been languishing in judicial custody for more than one year since their arrest on 29.01.2024. Though charge was framed but only two witnesses were examined till date. 5. Learned counsel for the petitioners has further stressed his argument on the point that the accused/petitioners were never supplied with the full particulars of the offence for which they were arrested or other ground(s) of arrest at the time of their arrest continuing till date which is in violation of Section 47(1) of BNSS corresponding to Section 50(1) of Cr.P.C. rendering the arrest and subsequent remand of the accused petitioners invalid. 6. By referring the judgment of this Court vide Ajit Kumar Sarmah vs. State of Assam, reported in 1976 SCC OnLine Gau 30, the learned counsel Page No.# 3/10 for the petitioner has pointed out that this Court has earlier resolved the issues on the point of wrongful detention which is reproduced as follows- “The provision of Section 50 is mandatory and must be strictly complied with. A citizen’s liberty cannot be curtailed except in accordance with law. Even if any communication about the offence was orally made by respondent No. 3 to the petitioner, we do not know what kind of communication was made, whether the communication of the full particulars or the mere section of the offence was told to the petitioner. In the circumstances, we hold that the arrest and detention of the petitioner by respondent No. 3 was in violation of Section 50 Cr.P.C…….” The learned counsel for the petitioner has also cited another case law vide- Vihan Kumar vs. State of Haryana, reported in 2025 SCC online SC 269. 7. According to the learned counsel for the petitioners, in the instant case, as per arrest memo of the petitioners, the grounds of arrest have not been mentioned which is mandatory in nature. As such, the petitioners are entitled for bail due to such illegality committed at the time of their arrest. 8. Per contra, Mr. Kaushik, learned Additional Public Prosecutor for the State has submitted that commercial quantity of contraband items were recovered from the conscious possession of the petitioners. As the commercial quantity of contraband items are involved in the instant case as such, the embargo under Section 37 of NDPS Act will come into play. Hence, the Additional Public Prosecutor has opposed in granting bail to the petitioners. However, learned Additional Public Prosecutor has admitted that the grounds of arrest have not been mentioned in the arrest memo of the petitioners. Page No.# 4/10 9. I have considered the submission of the learned counsel for the parties and I have also perused the trial court record. 10. Section 50 of Cr.PC (Section 47 BNSS) reads as follows – “1. Person arrested to be informed of grounds of arrest and of right to bail – (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.” 11. Section 50 (A) of Cr.P.C. [Section 48 BNSS] reads as follows – “50 A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person – (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by Page No.# 5/10 the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.” 12. Article 22 of the Constitution of India deals with protection against arrest and detention in certain cases which reads as follows – “(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be Page No.# 6/10 produced before the nearest Magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate….” 13. On a bare look at the aforesaid provisions, it reveals that the aforesaid provisions provide certain safeguards regarding arrest and detentions. It aims to protect the rights and liberties of the individuals who are arrested or detained by the authorities. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. They have the right to know the reasons behind their arrest, enabling them to effectively exercise their legal rights. 14. The question to be taken up in this case whether the accused/petitioners are entitled for bail if grounds of arrest have not been disclosed in the arrest memo. 15. In the case of Vihan Kumar (Supra), 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. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Page No.# 7/10 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.” 16. In the aforesaid case, it was also observed that when an arrested person is produced before a Judicial Magistrate for remand, it is duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal. Therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights. 17. It is specifically mentioned in the case of Vihan Kumar (Supra) that 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 bail 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. 18. Proceeding to the case is hand, the arrest memo issued against the Page No.# 8/10 petitioners which contains name and particulars of the persons arrested, circumstances/P.S. Case/GDE reference of arrest, place of arrest, date and time of arrest, injuries present at the time of arrest, signature and name of relatives/witness to arrest, signature of arrested persons and full signature of arresting officer. 19. From the aforesaid particulars, as mentioned in the arrest memo, it does not disclose any grounds being informed to the petitioners of their arrest in connection with Lumding P.S. Case No. 10/2024. 20. 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.” 21. Situated thus, the settled principle of law is that an arrested person must be informed of the grounds for 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 Page No.# 9/10 informed of the grounds for such arrest or detention. In the instant case, there is no reflection in the Section 50 Cr.P.C. notice served to the petitioners dated 29.01.2024 that the accused petitioners were informed about the grounds for their arrest in connection with Lumding P.S. Case No. 10/2024. 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. 22. Accordingly, the petitioners, named above, shall be released on bail in connection with SPECIAL (NDPS) Case No. 58 (H) /2024 (arising out of Lumding P.S. Case No. 10/2024), on furnishing bail bond of Rs.2,00,000/- (Rupees Two Lakh only) each with two suitable sureties each of the like amount, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Special Judge, NDPS, Hojai, Assam. The direction for bail is further subject to the conditions that the petitioners: (a) shall not leave the territorial jurisdiction of learned Special Judge, NDPS, Hojai, Assam without prior written permission from him/her; (b) shall regularly attend the trial court and cooperate with the court for early disposal of the trial; 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. 23. It is pertinent to mention here that the findings of this court that the arrest of the petitioners’ stands vitiated will not affect the merits of the pending Page No.# 10/10 case. 24. The bail application is disposed of accordingly. JUDGE Comparing Assistant