Page No.# 1/8 GAHC010181102025 2025:GAU-AS:13024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2728/2025 OM PRAKASH MISHRA R/O NARAR GOTH, WARD NO. 03, P.S. KULUAHI DIST. MADHUBANI, BIHAR. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR S RAHMAN, MS DHANESWARI K,MS. S PHUKAN Advocate for the Respondent : PP, ASSAM, B E F O R E HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date of hearing & judgment : 16.09.2025 ORDER Heard Mr. S Rahman, learned counsel for the petitioner. Also heard Mr. S H Borah, learned Addl. Public Prosecutor for the State respondent. Page No.# 2/8 2. This is an application filed under Section 483 of the BharatiyaNagrik Suraksha Sanhita 2023, seeking Bail in respect of the accused/petitioner namely OM Prakash Mishra, who was arrested on 03.05.2024, in connection with NDPS Case 274/2024 under Section No. 20(b) (ii)(C)/29 of NDPS Act pending before the Court of Additional District and Sessions Judge No. 5, Kamrup (M), Guwahati, arising out of GRPS Case No. 105/2024. 3. The case of the petitioner is that on 03.05.2024, the informant HC Binod Kumar Dubey of Guwahati GRPS lodged an FIR at Guwahati GRPS lodged an FIR at Guwahati GRPS Police Station by staring that, on the same day, while informant along with staffs left for checking duty at Guwahati Railway Station. After arrival of Train No. 14619 DN Tripura Sundari Express at Platform No. 02 of Guwahati Railway Station at around 05:00 PM, they conducted checking of luggage bags of passengers in Coach No. H-1C. In due course, whey they were about to check two trolley bags (one green colour and one grey colour) and 01 army camouflage back pack of the persons sitting together on Seat No. 7 and 8, the persons became nervous. On enquiry, they disclosed that they were travelling together from Agartala Railway Station to Madhubani, Bihar and identified themselves as (i) Omprakash Mishra, 27 years, S/o Pawan Mishra, R/o Narar goth Ward No. 03, PS Kaluahi, District Madhubani, Bihar and (ii) Yogesh Kumar, 21 years, S/o Predeep Kumar Singh, R/o Narar goth Ward No. 05. P.S Kaluahi, District Madhubani, Bihar. On being shown by the above named persons, they checked their aforesaid bags and found 03 packets wrapped with brown colour plastic tape containing suspected Page No.# 3/8 Ganja (Cannabis) inside the camouflage back pack and 02 packets wrapped with brown colour plastic tape containing suspected Ganja (Cannabis) inside the grey colour trolley bag from the possession of Yogesh Kumar and 02 packets wrapped with brown colourplasti tape containing suspected Ganja inside the green colour trolley bag from the possession of Omprakash Mishra. They admitted that they brought the recovered suspected Cannabis from Agartala, Tripura and carrying the same to their native villages with a motive to sell. Hence, the informant immediately informed the matter to the O/c. Guwahati GRPS through a phone call after which SI(B) Anowar Hussain Sheikh of Guwahati GRPS arrived at the place of occurrence and measured the weight weighing total 89.100 kgs. Accordingly, SI(B) Anowar Hussain Sheikh seized the aforesaid contraband in presence of witnesses after following all the procedures and formalities. Accordingly, a case has been registered vide GRPS Case No. 105/2024 under Section 20(b)(ii)(c)/29 of NDPS Act, 1985. 4. It is submitted that the Hon’ble Supreme Court in Vihaan Kumar Vs. State of Haryana&Anr., reported in 2025 SCC OnLine SC 269 has held that it is a mandatory requirement of Article 22(1) that the information of the ground of arrest must be provided to the arrested person in such manner that sufficient knowledge of the basic facts constituting the grounds is informed and communicated to the arrested person effectively in the language he understands, which has not been done in the present case. 5. Per contra, the learned Addl. Public Prosecutor has submitted that the material available on record thoroughly incriminates the accused person which is why the Charge-sheet has been submitted against him alongwith the Page No.# 4/8 other accused persons. With regard to non-furnishing the grounds of arrest, as required under Section 50 and 50A of Cr.PC, the learned Addl. Public Prosecutor had placed reliance upon the decision of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Sri Darshan,reported in2025 SCC Online SC 1702, wherein it has been held that mere non- furnishing of the grounds of arrest would not ipso facto vitiate the arrest and the test of prejudice is required to be applied. 6. I have perused the materials on record, more particularly the order sheets of the Magistrate as well as the notice under Section 50 of the CrPC furnished to the accused. 7. A bare perusal of the said notice would show that the accused/his relatives were was simply informed of his arrest under NDPS Case 20(b)(ii) (c)/29 of NDPS Act, arising out of GRPS Case NO. 105/2024.What such notices shows is that the accused and his relative respectively were aware of his arrest. 8. The Hon’ble Supreme Court in PrabirPurkayastha(supra) held : “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. Page No.# 5/8 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.” 9. The learned Addl. Public Prosecutor has referred to the State of Karnataka Vs. Sri Darshan (supra), to submit that the test of prejudice is to be applied in the event that the grounds of arrest are not furnished in the required manner to the accused at the time of his arrest. 10. 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 Page No.# 6/8 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 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 PrabirPurkayastha 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.” 11. 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. PranaySethi, Page No.# 7/8 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. 12. In Vihaan Kumar (supra), it has been held that the grounds of arrest must be intimated in such manner that the arrested has sufficient knowledge of the basic facts constituting the grounds effectively in a language understood by the arrestee. 13. In Sri Darshan (supra), the Hon’ble Supreme Court has clarified a law laid down in Vihaan Kumar (supra)to the effect that it would be sufficient compliance with Article 22 (1) if the accused is made aware of the grounds of arrest in substance even if not conveyed in writing. To that extent, there appears to be no conflict between what has been said in Vihaan Kumar (supra) and Sri Darshan (supra) as the later decision has explained the former on this particular aspect. 14. Now, coming to the question as to whether the grounds of arrest, in substance, have been communicated to the accused and his family members it would be apposite to go through the Magistrate’s Records. 15. The accused persons were produced before the Magistrate for the first time on 04.05.2024 and it is recorded in the order passed by the learned JMFC, Kamrup (M) on the said date that the accused have stated that they will engage counsel on their own. Therefore, it is apparent that on the day of production Page No.# 8/8 they were not represented by any counsel whether engaged on their own or appointed by the Court. Although it has been stated in the said order that the accused have been made aware of their legal rights, there is no indication that the grounds of arrest were furnished to the accused persons or their family members on that day or even thereafter on the subsequent dates of production. 16 Therefore, leaving set aside the question of conflict between Vihaan Kumar (supra) and Sh. Darshan (supra), I find that there has been total non- compliance as far as the requirement of furnishing the grounds of arrest to the accused or their relatives are concerned, thereby resulting in violation of Article 21 as well as article 22(1) of the Constitution of India. Consequently, the arrest of the petitioners stands vitiated and they are entitled to be released on bail. 17. Accordingly, it is directed that the petitioners shall be released on bail of Rs. 1 lakh with two sureties of like amount and one of the sureties must be a Government servant. It is further provided that the petitioners shall not try to influence the witness in any manner and will regularly participate in the trial. 18. The Bail Petition is disposed of accordingly. JUDGE Comparing Assistant