Page No.# 1/8 GAHC010129642024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1919/2024 MD. KAMRUL ISLAM S/O ABDUR RAHMAN, VILL- SOROPUR, P.S.-BADARPUR, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, S. TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER 30.04.2025 Heard Mr. H.R. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Addl. Public Prosecutor for the State respondent. 2. This is an application under Section 439 of Cr.PC for granting regular bail to the petitioner, i.e. Md. Kamrul Islam, who has been arrested on 15.10.2023 in Page No.# 2/8 connection with Special NDPS Case No. 136/2023 pending in the Court of Special Judge, Karimganj arising out of Badarpur P.S. Case No. 284/2023. 3. The facts of the case is that one SI (P) Abijit Gogoi, Badarpur Police Station lodged an FIR before the jurisdictional Police Station alleging inter alia that on 15.10.2023 at about 3:30 p.m., an information was received from a reliable source that a large quantity of stock of illegal contraband article is kept hidden by the petitioner in his house and is going to deal the stock soon. Accordingly, after making an entry, a Police team proceeded to the location and after reaching there, they interrogated the petitioner and he confessed during such interrogation that he deals and sells illegal Psychotropic Substances and that he has kept 2 nos. of carton boxes containing illegal Cough Syrup in a room of his house. It is further alleged that the petitioner led the Police team to the room of his house, wherefrom 2 nos. of carton boxes containing 219 nos. of bottles weighing approximately 21,900 ml was recovered and seized and thereafter, a case was registered. Accordingly, the instant bail application. 4. Mr. H.R. Choudhury, learned counsel for the petitioner submits that the arresting authority while arresting the petitioner has not informed the grounds of arrest to him and as such, the Fundamental and Constitutional Rights guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioner is entitled to be released forthwith. 5. Per contra, Mr. B. Sharma, learned Additional Public Prosecutor fairly draws the attention of the Court from the case records that the Notice issued under Section 50 of Cr.P.C to the petitioner as well as the Memo of Arrest does not indicate that the grounds of such arrest has been informed to the petitioner at Page No.# 3/8 the time of his arrest. 6. I have considered the submissions advanced by the learned counsels for both the parties and also perused the materials available on record. 7. The primary ground urged in this bail application is as regard non- compliance of the Constitutional and Fundamental Right of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Apt to refer to Article 21 and 22(1) of the Constitution of India, which reads as hereunder:- “21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law. 22. Protection against arrest and detention in certain cases.— (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.” 8. Perusal of the aforesaid provision, it is apparent that an arrestee has a Constitutional and Fundamental Right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest. 9. In the present case, apt to refer to the notice issued to the petitioner under Section 50 of the Cr.P.C., which reads as hereunder: - “NOTICE TO GUARDIANS (U/S- 50 CR.P.C) Ref: Badarpur P.S. Case No. 284/2023, U/S. 22(c)/25/29 NDPS Act, 1985. To Badrul Islam Page No.# 4/8 S/o Lt. Abdur Rahman Vill- Soropur, P.S. Badarpur Dist.- Karimganj. Your are hereby informed that the below named accused person was arrested in connection with above reference case. He will be forwarded to the judicial custody. You may proceed to Hon’ble court for bail of accused person. Name of the accused person: Kamrul Islam, 32 years, S/O:- Late Abdur Rahman, Vill –Soropur P.O. – Bhanga Bazar, PS – Badarpur Dist. – Karimganj, Assam Signature of arresting police officer SI Dibakor Gogoi Malua PICP Incharge Malua PICP Under Badarpur PS Dist. Karimganj” 10. Perusal of the aforesaid notice indicates that except the name of the petitioner and case reference, no other information as regards the offence or the grounds of arrest is intimated to the guardian of the petitioner in this notice. 11. Apt also to refer to the memo of arrest, which reads as hereunder: - “MEMO OF ARREST HON’BLE SUPREME COURT OF INDIAD ORDER IN WRIT PETITION NO (CRL) 539 OF 1986 And WRIT PETITION (CRL) NO. 592 OF 1987 (I) REFERENCE : Badarpur P.S Case No. 284/2023, U/S 22(c)/25/29 NDPS Act, 1985 (2) NAME AND ADDRESS OF ARRESTEE: Kamrul Islam, 32 years Page No.# 5/8 S/o:- Late Abdur Rahman Vill – Soropur P.O.- Bhanga Bazar, PS-Badarpur, Dist. – Karimganj, Assam (3) Date and time of arrest : On 16.10.2023 at 1.30 PM (4) Signature of witness : ……….Illegible (5) Forwarded Date : 16.10.2023 (6) Name of police officer effecting arrest: SI Dibakor Gogoi (7) Signature of Arrestee : ………Illegible SIGNATURE OF I/O SI Dibakor Gogoi Malua PICP Incharge Malua PICP Under Badarpur PS Dist. Karimganj” 12. Perusal of the memo of arrest also indicates that except the name and particulars of the petitioner, date and time of arrest and case reference, no other information as regards the offence or grounds of arrest is mentioned. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioner: - “INSPECTION MEMO HON’BLE SUPREME COURT OF INDIAD ORDER IN WRIT PETITION NO (G.I) 539 OF 1986 And WRIT PETITION (CRL) NO. 592 OF 1987 Page No.# 6/8 (I) Date : 16.10.2023 (2) REFERENCE : Badarpur P.S Case No. 284/2023, U/S 22(c)/25/29 NDPS Act, 1985 (3) NAME AND ADDRESS OF ARRESTEE: Kamrul Islam, 32 years S/o:- Late Abdur Rahman Vill – Soropur P.O.- Bhangabazar, PS-Badarpur, Dist. – Karimganj, Assam (4) Wound in body at the time of medical examination: (5) Injury whether major/minor : As per medical report (6) Signature of doctor who examined the Arrestee: (7) Signature of Arrestee : ………Illegible (8) Name of police officer effecting arrest: SI Dibakor Gogoi SIGNATURE OF I/O SI Dibakor Gogoi Malua PICP Incharge Malua PICP Under Badarpur PS Dist. Karimganj” 13. It appears from the materials placed before this Court that there are no materials available in the case record to indicate that the grounds of arrest have been informed to the petitioner at the time of his arrest. Moreover, the case record does not indicate any contemporaneous record indicating that the grounds of arrest were informed to the accused. 14. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Page No.# 7/8 Constitution of India. Non-compliance of Article 22(1) will be a violation of the Constitutional and Fundamental Rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established (Refer:- Vihaan Kumar Vs State of Haryana and Anr., reported in 2025 SCConline SC 269). In the present case it is absolutely clear that the grounds of arrest was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest of the petitioner stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioner. Therefore, further detention of the petitioner in the custody is totally unjustified. 15. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, it is provided that on furnishing of a bail bond of Rs. 50,000/- (Rupees Fifty Thousand) only with two sureties of like amount, provided that one surety has to be a Government Servant to the satisfaction of the learned Special Judge, Karimganj under the conditions: - (a) That the accused/petitioner shall regularly appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; (b) That the accused/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 Page No.# 8/8 disclosing such facts to the Court; and (c) That the accused/petitioner shall refrain from committing any offences similar to the one of which he is accused. 16. In terms of the above, the bail application stands disposed of. JUDGE Comparing Assistant