Page No.# 1/13 GAHC010121312025 2025:GAU-AS:12938 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1869/2025 ANAR ALI S/O- KASHIM ALI. R/O- VILL.- NO.3, MANAHKUCHI, P.S.- HAJO. DIST.- KAMRUP, ASSAM. VERSUS THE STATE OF ASSAM REP BY THE LD. PP, ASSAM Advocate for the Petitioner : MR. N J DUTTA, B AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER (CAV) 19.09.2025 1. Heard Mr. N. J. Dutta, learned counsel for the petitioner and Mr. K. Baishya, learned Additional Public Prosecutor (Adl.PP), Assam, for the sole opposite party/respondent. Page No.# 2/13 2. This application under Section 483 of BNSS, 2023, has been filed by the petitioner, namely, ANAR ALI, who is detained behind the bar since 03.04.2023 in connection with Special NDPS Case No. 34/2023, corresponding to Hajo P.S. Case No. 239/2023 registered under Sections 20(b)(ii)(c)/29 of the NDPS Act, 1985. 3. The present one is the second application of the petitioner for bail, inasmuch as, earlier, this Court under its order dated 10.06.2024, rejected the bail prayer of the petitioner. On the said occasion, the argument was that the recovery was of “dry leaf materials” suspected to be ‘ganja’ and therefore, in terms of Section 2(iii)(b) of the NDPS Act, the same cannot be treated as cannabis. Rather, it is ‘bhang’, which will come under the provisions of the Assam Ganja and Bhang Prohibition Act, 1959. However, such an argument was rejected at that stage, citing the reason that such a conclusion cannot be arrived at the stage of bail, more particularly in the backdrop of the statement of the seizure witness that the recovered materials were ‘ganja’, and the Forwarding Report also refers to the recovery of ‘suspected ganja’. 4. The present application is filed solely on the ground that the grounds of the arrest were not communicated to the petitioner at the time of arrest or immediately thereafter. 5. According to Mr. N.J. Dutta, learned counsel for the petitioner, non- disclosure of grounds of arrest amounts to a violation of the right of the petitioner under Article 22 (1) of the Constitution of India and therefore, the arrest itself is illegal. Accordingly, the petitioner is required to be released on bail. According to Mr. Dutta, when the arrest itself is unlawful, Page No.# 3/13 the custody is equally tainted and therefore, bail must follow. 6. In support of his contentions, Mr. Dutta, learned counsel for the petitioner, places reliance on the judgments of the Hon’ble Apex Court passed in Kasireddy Upendra Reddy Vs. State of Andhra Pradesh and Ors. reported in (2025) SCC Online SC 1228, Pankaj Bansal Vs. Union of India and Ors. reported in (2024) 7 SCC 576, Vihaan Kumar Vs. State of Haryana & Anr. reported in (2025) SCC Online SC 269 and Prabir Purkayastha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254. 7. Per contra, Mr. Baishya, learned Adl.PP, while fairly conceding that no written grounds of arrest were given, argues that this is not a mandate under Section 50 of the C.R.P.C. until the petitioner alleges prejudice. In support he relies on the decision of State of Karnataka –Vs- Sri Darshan Etc. reported in 2025 SCC Online SC 1702. Referring to the arrest memo, Mr. Baishya contends that the full particulars of the case were given to the petitioner and therefore, non-furnishing of written ground of arrest should not prejudice the accused and that being the position, the arrest suffers from no irregularity. 8. Mr. Baishya further contends that the judicial custody of the petitioner follows from the Special Judges’ remand and therefore, remains valid. He, thus, argues that once remand is granted, custody is referable to the judicial order and not to the arrest. 9. According to Mr. Baishya, the rigour of Section 37 of the NDPS Act, may not be diluted on the ground of non-furnishing of grounds of arrest Page No.# 4/13 until and unless the mandatory twin conditions are satisfied. According to him, the procedural lapse cannot override the statutory bar, inasmuch as the violation of right under Article 22(1) of the Constitution of India, in such a case, may rise to a claim of compensation, but does not automatically entitle the accused to bail. As the present application is filed solely based on illegality at the stage of arrest and does not address the merit of allegations, in the absence of fulfilment of the statutory test under Section 37 of the NDPS Act, bail may not be granted to the petitioner. 10. Mr. Baishya strenuously submits that, the principle of law laid down in Pankaj Bansal (supra) is retrospective in nature and shall come into effect from 03.10.2023 and therefore, the petitioner cannot be given the benefits of such determination, his date of arrest being prior to the aforesaid date. 11. While replying, Mr. Dutta, learned counsel for the petitioner, contends that the determination made in Darshan (supra) is in conflict with the determination made in Vihaan Kumar (supra) and therefore, both the judgments being authored by benches of the same strength, the earlier determination made in Vihaan Kumar (supra) prevails and is binding upon this Court. 12. I have heard the learned counsels for the parties and perused the materials available on record, and also perused the ratios pressed into service. 13. In the backdrop of the arguments advanced at the Bar, let this Court Page No.# 5/13 first consider the ratios laid down by the Hon’ble Apex Court in the judgments cited at the bar. 14. Pankaj Bansal (supra) is a case wherein the Hon’ble Apex Court examined the manner of arrest of accused Pankaj Bansal, under the provisions of the Prevention of Money Laundering Act (PMLA) and as to whether such arrest was in keeping with the safeguards guaranteed under Section 19 of the PMLA. While referring to the judgment of Bijay Madanlal Choudhary Vs. Union of India reported in (2022) SCC Online 929, the Hon’ble Apex Court noted that the safeguard of Section 19 of the PMLA was not dealt with or delineated in that judgment. And in V.Senthil Balaji Vs. State reported in (2024) 3 SCC 51, though it was noted that the information of grounds of arrest in a PMLA case should be served on the arrestee, but it did not elaborate on that issue. The Hon’ble Apex Court further noted that the Enforcement Director follows no consistent and uniform practice in this regard. 15. After noting those mentioned above, the Hon’ble Apex Court proceeded to record that Section 19 of the PMLA, makes it beyond doubt that the authorised officer must record the reasons in writing for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the PMLA. The Hon’ble Apex Court further noted that Rule 6 of the PML (the forms and manner of forwarding a copy of the order of arrest of a person along with the material to the adjudicating authority and its period of detention) Rules, 2005, provides that the arresting officer, while exercising its power under Section 19(1) of the PMLA, shall sign the arrest order in Form-III appended to the Rules, 2005 and that such format is Page No.# 6/13 required to be followed all over the country by authorized officer, who exercises the power of arrest under Section 19(1) of the PMLA, however, same has not been followed in uniformity. The Hon’ble Apex Court finally held that a copy of such written grounds of arrest should be furnished to the arrestee as a matter of course and without exception since the very purpose of such provision is to grant the arrestee a constitutional and statutory protection and failure to adhere to it, render such constitutional and statutory protection nugatory, resulting in violation of Article 22(1) of the Constitution of India and Section 19(1) of the PMLA. Accordingly, it was held that, henceforth, a copy of the written grounds of arrest would be provided as a matter of course and without any exception. 16. This Court records herein that, in the aforesaid backdrop of the fact and the ratio laid down, the arguments of Mr. Baishya, learned Adl.PP, that the mandate that an arrest without furnishing written ground of arrest to the accused is illegal, is prospective and therefore, resultant illegality of arrest for violation of Article 22(1) of the Constitution of India, shall also be prospective with effect from 03.10.2023 i.e. the date when the judgment in Pankaj Bansal (supra) was delivered, does not find any favour of this Court. The expression “henceforth”, in the considered opinion of this Court, was used by the Hon’ble Apex Court in the context of lack of uniformity, in furnishing ground of arrest in terms of Form-III appended to the Rules, 2005, and not in the context of the right of the arrestee either under Article 22(1) of the Constitution of India or under Section 19(1) of the PMLA. Further constitutional and statutory rights, as the case may be, can be prospective unless the same are constitutionally or statutorily made prospective. Page No.# 7/13 17. In the case of Vihaan Kumar (supra), the Hon’ble Apex Court reiterated the principle of mandatory requirement of informing an arrestee about the grounds of arrest under Article 22(1) of the Constitution of India and that when violation of the same is established, it is the duty of the Court to order the release of the accused forthwith. The Hon’ble Apex Court went ahead and recorded that an established violation of Article 22(1) of the Constitution of India will be a ground to grant bail, even if, a statutory restriction on grant of bail exists, since statutory limitation does not affect the power of the Court to grant bail, when the violation of Articles 21 & 22 of the Constitution of India is established. As a note of caution, the Hon’ble Apex Court clarified that when an arrest is held to be vitiated for established violation of Articles 21 & 22 of the Constitution of India, it will not affect the merit of the charge sheet and of the pending case. 18. In Prabir Purkayastha, (supra), after taking note of the propositions laid down in Pankaj Bansal (supra), more particularly, on Section 19(1) of the PMLA, it was held that the same principle shall also be applicable in respect of Section 43B(1) of the UAPA. The Hon’ble Apex Court further laid down that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India, and any infringement of fundamental rights would vitiate the process of arrest and remand. The mere fact that a charge sheet has been filed in the matter would not validate the illegality and unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remands to the accused. It was recorded that the right to life and personal liberty are the most sacrosanct fundamental rights guaranteed under Articles 21 and Page No.# 8/13 22 of the Constitution of India and cannot be breached under any situation. Non-compliance with this constitutional requirement would lead to the custody or detention being rendered illegal, as the case may be. 19. In Kasireddy Upender Reddy (supra), after duly taking note of the determination made in Vihaan Kumar (supra), the principles laid down in Vihaan Kumar (supra) were reiterated. It was also held that once the arrest is held to be vitiated, the person arrested cannot remain in custody, even for a second and that when an arrestee pleads before a Court that the grounds of arrest were not communicated, the burden to prove the compliance of Article 21 of the Constitution of India is on the police authority. As in the said case, grounds of arrest were supplied to the son of the appellant at the time of arrest, the Court rejected the contention of the petitioner therein that the ground provided does not make any sense or is just an eyewash. 20. In State of Karnataka Vs. Sri Darshan Etc. reported in (2025) SCC Online SC 1702, while reiterating the mandatory requirement of providing grounds of arrest to an arrestee and the resulting in violation of Article 22(1) of the Constitution of India, in absence thereof, held that when a specific form is not prescribed, insistence upon written communication in every case is not a mandate and in such a case, substantial compliance with this requirement is sufficient, unless demonstrable prejudice is shown. While referring to Kasireddy Upender Reddy (supra), it was observed that when an arrest is made pursuant to a warrant, reading out the warrant amounts to sufficient compliance. It was further interpreted that Vihaan Kumar (supra) and Kasireddy Page No.# 9/13 Upender Reddy (supra), both post Pankaj Bansal (supra), clarified that written individualised grounds are not an inflexible requirement in all circumstances. 21. It is essential to record herein that such a determination was made in reference to compliance of Section 50 of Cr.P.C. Dealing with Section 50 of Cr.P.C., the Hon’ble Apex Court held that while Section 50 of Cr.P.C. is mandatory, the test of compliance of the same should be prejudice- oriented, in examining an alleged procedural lapse. 22. Thus, from the aforesaid long line of decisions, it can be safely concluded that; I. Furnishing of the grounds of arrest is mandatory, and in the absence thereof, results in a violation of Articles 21 and 22(1) of the Constitution of India. II. It is also firmly established that where there is a statutory prescription of the manner and method of furnishing such grounds, it should be scrupulously followed. III. However, when a specific form is not prescribed, insistence on written communication in every case is not a mandate. In such cases, substantial compliance with this requirement is sufficient, unless demonstrable prejudice is shown. IV. It can also be safely concluded from the ratios laid down in the judgments cited above that the right to be informed of the grounds of arrest is not an empty formality. Even if the arresting officer does Page No.# 10/13 not furnish written copy at the very moment of arrest, there must be contemporaneous record in the case diary/official register that the grounds were reduced into writing at the time of arrest and the same were read over/explained to the accused for the reason that such contemporaneous record serves as a judicially reviewable evidence of compliance of such mandate, when the arrestee alleges prejudice. V. Subsequent explanations or affidavits by the arresting officer may not cure such defects in the absence of a contemporaneous record, as the requirement of furnishing grounds for arrest, either in writing or orally, as the case may be, is mandatory and goes to the validity of the custody itself. 23. To summerise, the grounds of arrest must be provided to the arrestee in terms of Article 22(1) of the Constitution of India; however, the mode of furnishing such grounds of arrest, shall depend upon the statutory prescription, if any, and in the absence of any prescription of furnishing written grounds of arrest, the arresting authority must ensure compliance of Article 22(1) of the Constitution of India. 24. For the reasons recorded hereinabove, this Court is of the opinion that the judgments rendered in Vihaan Kumar (supra) and Darshan (supra) cannot be said to be conflicting judgments, although Mr. N.J. Dutta, learned counsel for the petitioner, argues the same. 25. The finding in Darshan (supra) is that mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in Page No.# 11/13 demonstrable prejudice or denial of a fair opportunity to defend. Such observation was made in the context of non-adherence to Section 50 of Cr.P.C., wherein there is no specific mandate of furnishing of grounds of arrest in “writing”; however, In Darshan (supra) the requirement of protection of an arrestee’s right under Article 22(1) of the Constitution of India was upheld, further putting the burden on the arresting authority to establish that, the grounds of arrest were communicated with complete particular of offence for which he is arrested or the grounds of such arrest were provided and also that the conduct of arresting authority has not violated the right of the arrestee under Article 22(1) of the Constitution of India. Therefore, conjoint reading of Vihaan (supra) and Darshan (supra) clarifies that under section 50 of the Cr.P.C, written communication may not be a mandate, and the communication can also be oral, however, there must be contemporaneous record in the case diary/official register that the grounds were reduced into writing at the time of arrest and the same were read over/explained to the accused. 26. Now coming to the case in hand, the accused was served with a notice under Section 50 of Cr.P.C. A scrutiny of the said notice goes to show that the petitioner was only informed that he had been arrested in connection with Hajo P.S. Case No. 239/2023, and that the case is non-bailable, and he would be produced before the Court of JMFC, Hajo, Kamrup on 03.04.2023. In the considered opinion of this Court, such communication, when the petitioner was arrested without a warrant, cannot be treated as a communication to the accused of the full particulars of the offence for which the arrest was made or the ground of such arrest. Mere mentioning the Section of the NDPS Act, registered in the F.I.R., in the considered Page No.# 12/13 opinion of this Court, cannot be said to be full particulars of the offence for which he was arrested or the grounds of arrest. Admittedly, there was no disclosure of the grounds of arrest. Perusal of the records, this Court has not found any contemporaneous record, even remotely suggesting that the grounds were reduced into writing at the time of arrest, and the same were read over/explained to the accused. Mr. Baishya learned additional PP, in his usual fairness, also concedes the same. 27. Given this position, this Court is of the unhesitant view that the petitioner is entitled to a direction for release from custody, applying the ratio of judgments rendered in Pankaj Bansal (supra), Vihaan Kumar (supra) and Darshan (supra). 28. Since the petitioner is in custody of the Court, and the trial is at advance stage, this Court is of the opinion that ends of justice would be served if the petitioner is released on bail, rather than released without any condition of bail. 29. Accordingly, it is directed that the petitioner, namely ANAR ALI, be released on bail, on executing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand) with two suitable solvent sureties of like amount to the satisfaction of the learned Additional District and Sessions Judge, Kamrup, Amingaon, in connection with the aforementioned case. The bail granted to the petitioner shall be subject to the following conditions:- a) The petitioner shall not leave the territorial jurisdiction of the learned Additional District and Sessions Judge, Kamrup, Amingaon, without prior written permission from him; Page No.# 13/13 b) The petitioner shall not hamper and/or tamper with the evidence of the case. c) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer. d) The petitioner shall surrender his passport, if any (if not already surrendered), before the learned Additional District and Sessions Judge, Kamrup, Amingaon. e) The petitioner shall furnish the present residential address with proof to the learned Trial Court below and shall not change the said residence without prior permission of the learned Trial Court. f) The petitioner shall appear before the Officer-in-Charge, Hajo PS, on the 1st day of every week till completion of trial. g) The petitioner shall appear before the learned Trial Court on each and every date of appearance during the trial, unless allowed by the Trial Court 30. In the aforesaid terms, this bail petition is allowed. 31. The TCR be returned back. JUDGE Comparing Assistant