Page No.# 1/5 GAHC010138682025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2064/2025 SALMA BEGUM AND 3 ORS W/O LATE ABDUL BAREK R/O DIMAPUR NEAR MIYA COLONY P.S. EAST DIMAPUR DIST. DIMAPUR, NAGALAND. 2: SMTI. DANMAYA CHETRY C/O SMTI. DEEPA CHETRY R/O DIMAPUR EAST COLONY P.S. EAST DIMAPUR DIST. DIMAPUR NAGALAND. 3: SMTI. KUMARI CHETRY W/O SRI BIR BAHADUR CHETRY R/O DIMAPUR DEJAFER NEAR GOVT. BETHEL AG SCHOOL P.S. EAST DIMAPUR DIST. DIMAPUR NAGALAND. 4: SRI TULEN HAZARIKA S/O LATE TANGKESWAR HAZARIKA R/O BORDIRAK NEAR GOHORAGORI TINIALI P.S. KAKOPATHAR DIST. TINSUKIA ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Page No.# 2/5 Advocate for the Petitioner : MR. N HASAN, MR. A HASAN Advocate for the Respondent : PP, ASSAM, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 16.07.2025 Heard Mr. N. Hasan, learned counsel for the accused persons and also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State respondent. 2. This bail application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is preferred by four accused, namely, Salma Begum, Danmaya Chetry, Kumari Chetry and Tulen Hazarika, who are languishing in jail hazot since 01.12.2022, in connection with NDPS Case No.18(T)/2023, under Section 21(c)/29 of the NDPS Act, for grant of bail. 3. Mr. Hasan, learned counsel for the accused persons submits that this is the second bail application preferred by the accused persons on the ground that while effecting arrest of the accused persons, the Investigating Officer had not communicated the ground of arrest to the accused persons. To buttress his submission, Mr. Hasan has referred to Annexure-7 series, the Memo of Arrest and the Inspection Memo, at page Nos.46—49, and Annexure-8 series, the Notice under Section 50 Cr.P.C. at page Nos.50—53, and also Annexure-9, the notice under Section 50A Cr.P.C., at page No.54 of the petition. Mr. Hasan further submits that since the ground of arrest has not been communicated to the accused persons at the time of arrest, the same has violated the mandate of Article 22(1) of the Constitution of India and also the decisions of Hon'ble Supreme Court in the cases of Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar v. State of Haryana & Anr., reported in 2025 SCC OnLine SC Page No.# 3/5 269 and therefore, Mr. Hasan submits that the accused persons may be released on bail. 4. Per contra, Mr. P. Borthakur, learned Additional Public Prosecutor has fairly submits that going through the Annexure, from page Nos.46 to 54, it cannot be said that the I.O. has communicated the ground of arrest of the accused persons. However, Mr. Borthakur has referred to a decision of the learned Trial Court dated 03.06.2025, annexed with the application at Annexure-10, at page No.55, submits that the learned Trial Court after giving detail reason, had dismissed the bail petition preferred by the accused persons on the ground of non-communication of the ground of arrest to the accused persons and as such, Mr. Borthakur has opposed the petition. 5. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the Annexure, at Page Nos.46—55 annexed with the petition. And also gone through the decision of Hon'ble Supreme Court in the case of Prabir Purkayastha (supra) and Vihaan Kumar (supra). 6. It is to be noted here that while dealing with the issue of communication of ground of arrest to the accused, in the case of Vihaan Kumar (supra), Hon’ble Supreme Court has held 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 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 Page No.# 4/5 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 charge sheet 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 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.” 7. Same proposition of law is laid down in the case of Prabir Purkayastha (supra), also. 8. In the instant case, having perused the Notice issued to the accused persons under Section 50 of Cr.P.C., and the Memo of Arrest and Inspection Memo of the accused persons, this Court is unable to derive satisfaction that the I.O., while effecting arrest of the accused persons had ever communicated the ground of arrest to them. And as such, Page No.# 5/5 the right guaranteed under Article 22(1) of the Constitution of India and also the mandate of the Hon'ble Supreme Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra), is violated in respect of the accused persons and thereby rendering their arrest illegal and contrary to the provision of law. 9. It is a fact that the accused herein this case were arrested under Sections 21(c)/29 of the NDPS Act. Indisputably, the quantity of contraband substances so recovered from their possession was commercial quantity. And as such, there is a requirement of satisfying the twin conditions of Section 37 of the NDPS Act. But, in the case of Vihaan Kumar (supra), it has been held 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 and 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. 10. Accordingly, it is provided that on furnishing a bail bond of `50,000/- each, with one surety of like amount to the satisfaction of the learned Trial Court, all the accused persons, namely, Salma Begum, Danmaya Chetry, Kumari Chetry and Tulen Hazarika, shall be enlarged on bail. 11. It is further provided that the learned trial Court shall be at liberty to impose any other condition so as to ensure appearance of the accused persons during the course of trial. 12. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant