Page No.# 1/6 GAHC010177982025 2025:GAU-AS:11954 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2620/2025 MOINUDDIN AND ANR SON OF ASANUDDIN RESIDENT OF VILL- SODARGAON, P.S. DABOKA, DIST. HOJAI, ASSAM 2: ANARUL HUSSAIN SON OF AFAZ UDDIN RESIDENT OF VILL- NAROMARI P.S. NAGAON SADAR DIST. NAGAON ASSA VERSUS THE STATE OF ASSAM REP BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, SAMIM RAHMAN,MR A W AMAN,MR. SURAJIT DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 03.09.2025 Heard Mr. S. Nawaz, learned counsel appearing for the petitioners. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor Page No.# 2/6 for the State respondent. 2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail in respect of the accused/petitioners namely Moinuddin and Anarul Hussain in connection with Special (NDPS) Case No. 188/2024 under sections 21(c)/29 of the NDPS Act, 1985 pending in the Court of learned Addl. Sessions Judge No. 2, Nagaon. 3. The case of the petitioners is that on 25.03.2024, the informant, TSI Utpal Baishya lodged an FIR alleging inter alia that on that very day at around 3:56 p.m., acting on a specific intelligence input, police team intercepted a Swift Dzire car (AS 02 AJ 0170) on RKB Road near Himmatsingka Petrol Pump and recovered suspected heroin in 37 soap boxes weighing 1.490 kgs (with containers) and 431 gms (without containers) from the possession of the accused petitioners. 4. The FIR was registered as Nagaon P.S. Case No. 254/2024 under Sections 120-B/328, IPC read with Sections 21(c)/29 of the NDPS Act. 5. It is submitted on behalf of the petitioners that the they were never intimated about the grounds of their arrest as is mandated under law. It is humbly submitted that the arrest as is mandated under law. It is humbly submitted that the arrest memos, notices served on the petitioners and their respective family members under Sections 50 and 50-A of the CrPC respectively are conspicuously missing the grounds of arrest. 6. The learned counsel for the petitioners has relied upon the Page No.# 3/6 decisions of the Hon’ble Supreme Court in Prabir Purkayastha (supra) wherein it was held as follows: “30. 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 Articles 22(1) and 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. 31. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal Vs. Union of India and Others, laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the accused appellant is noted to be rejected.” 7. A perusal of the notices issued under Section 50 Cr.PC and 50 A Cr.PC would go to show that notice in which ground of arrest was mentioned in any of the said notices served upon the arrested accused or the family members of the accused. 8. The learned Addl. Public Prosecutor has placed reliance upon the recent decision of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Sri Darshan etc., reported in 2025 SCC Online Page No.# 4/6 SC 1702, wherein it has been held that mere non-furnishing of the grounds of arrest would not be ipso facto vitiate the arrest and the test of prejudice is required to be applied. 9. It has been held in the State of Karnataka Vs. Sri Darshan (supra) as follows:- “ 20.1.3. The constitutional and statutory framework thus mandates that the arrested person must be informed of the grounds of arrest – but neither provision prescribes a specific form or insists upon written communication in every case. Judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown. 20.1.4. In Vihaan Kumar v. State of Haryana 22, it was reiterated that Article 22(1) is satisfied if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh 23 , it was observed that when arrest is made pursuant a warrant, reading out the warrant amounts to sufficient compliance. Both these post- Pankaj Bansal decisions clarify that written, individualised grounds are not an inflexible requirement in all circumstances. 20.1.5. While Section 50 Cr.P.C is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend. 20.1.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally (2024) 7 SCC 576 represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal and Prabir Page No.# 5/6 Purkayastha is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.” 10. A Division Bench of this Court in the case of National Investigation Agency Vs. Thangminlen Mate @ Lenin Mate in Crl.A. No. 234/2025 has held that there appears to be a dichotomy of views in the decision of the Hon’ble Supreme Court in State of Karnataka Vs. Sri Darshan (supra) and Vihaan Kumar Vs. State of Haryana & Anr(supra) and referring to the decision of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, wherein it was held that if there are conflicting decisions of equal Benches of the Supreme Court, the earlier decision should be followed by the High Courts, has held that the earlier decision of the Supreme Court, i.e., Vihaan Kumar (supra) would have to be followed. 11. A perusal of the Magistrate’s order sheet would show that the accused persons were arrested on 25.03.2024 were produced before the Magistrate on 26.03.2024 and remanded to police custody till 28.03.2024. The perusal of the Magistrate’s order dated 26.03.2024 would reveals that no Legal Aid Counsel was provided to the accused persons and no bail petitions were filed on their behalf. This state of affairs continue till the filing of charge-sheet on 12.08.2024 and thereafter till 29.10.2024, when a bail application was filed on behalf of one of the accused on the interim bail upon the death of his father. There is no reflection on the order sheet that they were represented Page No.# 6/6 by any counsel during this period. Therefore, the prejudice caused to the accused due to non-furnishing of the grounds of arrest to them or to their family members is writ large on the face of the record even keeping aside the question of dichotomy between the decisions of the Supreme Court in Vihaan Kumar (supra) and Sri Darshan (supra), by any standard, it must be held that there was total non- compliance with the requirements of Section 50 Cr.PC and consequently Article 22(1) of the Constitution of India, thereby vitiating the arrest of the accused, having regard to the decisions of the Hon’ble Supreme Court referred to above. 12. 12. Consequently, the bail application stands allowed. 13. The accused abovenamed shall be released on bail of Rs. 50,000/- with 2 sureties of like amount to the satisfaction of the learned CJM, Nagaon. One of the sureties must be a Govt. Servant. Bail is granted on the condition that the accused shall regularly participate in the trial and shall not attempt to influence the witnesses. JUDGE Comparing Assistant