Page No.# 1/6 GAHC010205272024 2025:GAU-AS:4366 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3015/2024 ZABEL HUSSAIN @ JABEL HUSSAIN S/O JAMSED ALI, VILL- SINGARIA, P.S.-NILAMBAZAR, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, K MAINUDDIN,A S PRODHANI,S. TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 08.04.2025 1. Heard learned Counsel Mr. H.R.Choudhury for the petitioner Zabel Hussain @ Jabel Hussain who has filed this application under Section 483 of the BNSS, 2023 with a prayer for bail as he is behind bars since 29.01.2025 in connection with Special NDPS Case No.59/2023 arising out of Nilambazar PS Case No. 111/2023 under Sections 21 (C)/25/29 of the NDPS Act pending in the Court of Page No.# 2/6 learned Sessions Judge, Karimganj. 2. Learned Addl.Public Prosecutor Mr. K.K.Das is present for the respondent State. 3. It is submitted on behalf of the petitioner that he has been incarcerated for 1 year 10 months and not a single witness has been examined so far. 8 witnesses are enlisted as cited witnesses in the charge sheet. The petitioner is suffering immensely as he is only 26 years old. There is scope for reformation. It is also submitted that the petitioner was not found in conscious possession of the contraband. The petitioner’s personal liberty has been infringed as notice under Section 50 of the CrPC does not reflect that the grounds of arrest were communicated to the petitioner. A certified copy of the notice under Section 50 of the CrPC has been submitted by the learned counsel for the petitioner which is marked as ‘X’ and will form a part of the record. 4. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Vihaan Kumar-vs- State of Haryana & anr. reported in 2025 (0) Supreme (SC) 283 wherein it has been observed in paragraph 13 and 14 as quoted herein below: “13. ……………………………………………Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in the case of Pankaj Bansal1, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate. If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated Page No.# 3/6 in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above. 14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.” 5. On the contrary, learned Addl.Public Prosecutor has drawn the attention of this Court to paragraph 18 of the decision of the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) which is quoted herein below: “18. In the present case, 1st respondent relied upon an entry in the case diary allegedly made at 6.10 p.m. on 10th June 2024, which records that the appellant was arrested after informing him of the grounds of arrest. For the reasons which will follow hereafter, we are rejecting the argument made by the 1 st respondent. If the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a Court that grounds of arrest were not communicated, the burden to prove the compliance of Article 22(1) is on the police.” Page No.# 4/6 6. Learned Addl.Public Prosecutor has further submitted that the contemporaneous record in this case is the forwarding report which clearly reflects the grounds of arrest. It is further submitted that on interpreting the decision of the Hon’ble Supreme Court, it appears that the grounds of arrest has to be communicated in a language understood by the accused. It can also be understood from the decision of Vihaan Kumar (supra) that the grounds of arrest may not be communicated in writing when there is contemporaneous record of forwarding under the grounds of arrest. Section 50 of CrPC notice submitted by the petitioner clearly reveals that he was aware that he was arrested in a case which falls under the NDPS Act. It is further submitted that over and above communication, the grounds of arrest in the notice under Section 50 of the CrPC was communicated with the full particulars of the offence for which the petitioner was arrested and this has been accepted by the petitioner with his signature. 7. The learned Addl.Public Prosecutor has thus submitted that the petitioner has failed to affirm effectively that the grounds of arrest were not communicated to him in a language understood by him. He has taken a false plea under a false pretext that the grounds of arrest were not communicated to him only to take the benefit of decision in Vihaan Kumar’s case (supra) and procure an order of bail. It is further submitted that the petitioner is complicit, and when the contraband was found in his possession, he cannot deny that he was not aware of the grounds of arrest when he was taken into custody. 8. I have considered the submissions at the Bar with circumspection. 9. It is not believable that the grounds of arrest were not communicated to the petitioner and the particulars under Section 50 of the CrPC clearly reveals Page No.# 5/6 the particulars of the offence as well. The petitioner was even informed that he was arrested in connection with a non-bailable offence. Thus, the argument of the petitioner on the grounds of arrest can be safely brushed aside. It can be held that the petitioner ‘s grounds of arrest were communicated to him. 10. I have considered the length of detention. The petitioner has been behind the Bars for more than 1 year 10 months. Not a single witness has been examined so far. It is true that the petitioner was intercepted while he was carrying 300 grams of suspected heroin and he is booked in a serious offence, but at the same time, it is apparent that trial has been procrastinated by the State as well as by the Court. 8 witnesses are enlisted in the charge sheet as cited witnesses and not a single witness has been examined so far. 11. I have relied on the decision of the Hon’ble Supreme Court in the case of Dhirendra Kr. Choudhury –vs- The State of Assam in Criminal Appeal No.3379/2024 wherein vide order dated 14.08.2024, the appellant Dhirendra Kr. Choudhury was granted bail for incarceration of 17 months. In the light of the decision of case of Dhirendra Kr.Choudhury (supra), the present petitioner is granted bail. 12. The petitioner named above shall be released on bail on furnishing bail bond of Rs.1,00,000/- ( Rupees One Lac) with 02(two) suitable sureties of like amount to the satisfaction of the learned trial court. The learned trial court may further impose any condition for bail to secure the attendance of the petitioner. 13. In terms of the above observations, the bail application stands disposed of. JUDGE Page No.# 6/6 Comparing Assistant