Page No.# 1/12 GAHC010211612024 2025:GAU-AS:2652 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3081/2024 JASIR UDDIN BARBHUIYA AND ANR S/O NIJAM UDDIN BARBHUIYA R/O TUPKHANA PT.II P.O. RAMNAGAR, TARAPUR, P.S. SILCHAR SADAR, DIST. CACHAR, ASSAM PIN-788003 2: PIKLU DAS S/O SIBU DAS R/O TUPKHANA PT.II P.O. RAMNAGAR TARAPUR P.S. SILCHAR SADAR DIST. CACHAR ASSAM PIN-78800 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Page No.# 2/12 Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 13.03.2025 Heard Mr. B.K Mahajan, learned counsel for the petitioners. Also heard Mr. D.P Goswami, learned Addl. P.P for the State. 2. By filing this bail application u/s 483 of BNSS, 2023, the petitioners have prayed for bail in connection with Special NDPS Case No.76/2023 (arising out of Bazaricherra Police Station Case No. 132/2023) u/s 22(c)/ 29 of NDPS Act, pending in the Court of learned Sessions/Special Judge, Sribhumi (Karimganj). 3. The factual matrix leading to this bail application is that an FIR has been lodged on 01.07.2023 before the Officer-in-Charge of Bazaricherra P.S stating inter alia that on the same day at around 4.40 A.M, one white color 4-wheeler Bolero pickup truck bearing registration no. AS-11-DC-7274 which was coming from Guwahati side towards Tripura, was signaled to stop at the naka checking point. During checking of the truck, 10 nos. of cartons containing 1500 nos. of bottles of suspected Codeine Phosphate Syrup were found, which were concealed with various types of online booking goods of Blue Dart, weighing Page No.# 3/12 about 180 kgs. The vehicle along with the recovered items were seized and the accused petitioners were arrested. 4. It was urged by the learned counsel for the petitioners that the accused/petitioner no.1 is a driver by profession and the accused/ petitioner no.2 is a handyman, working under the Royal Courier Service, Paltanbazar, Guwahati. They are plying vehicles under Blue Dart Express Ltd. which is a National Logistics Company provided delivery services which has been misused by unknown miscreants for their illegal gain. The petitioners have no knowledge regarding transportation of such illegal drugs in the said vehicle. 5. Further submission of learned counsel for the petitioners is that it is a settled position of law that only conscious possession of contraband is penalized and considering the peculiar factual matrix of the instant case, it can be clearly seen that the accused petitioners had no role in the booking, loading, sealing/locking or unlocking of the shipment and they were only carrying out their allotted duties. Under such backdrop, the petitioners may be enlarged on bail. 6. It is further submitted that the accused petitioners have been languishing in judicial custody since 02.07.2023. The trial court has failed to complete the trial during such period. As has been held by the Hon’ble Supreme Court that prolonged incarceration dilutes the rigors of Section 37 of the NDPS Act, the bail Page No.# 4/12 may be granted to the petitioners on this ground alone. 7. By referring the judgment of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, the learned counsel for the petitioners has pointed out that the Hon’ble Supreme Court in the said case has held that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offences, has a fundamental and the statutory right to be informed about the grounds of arrest in writing and the copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. 8. It is also submitted that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge-sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. 9. According to the learned counsel for the petitioners, in the case in hand, as per arrest memo of the petitioners, the grounds of arrest have not been reflected which is mandatory in nature. As such, petitioners are entitled for bail due to such illegality committed at the time of their arrest. The learned counsel for the petitioners also cited another case law vide (2025) SCC Online SC 269 Page No.# 5/12 ( Vihaan Kumar Vs. State of Haryana and Another). 10. Per contra, learned Addl. P.P has argued that the alleged seized Codeine Phosphate Syrup was recovered from a vehicle wherein the petitioners were travelling. As the commercial quantity of contraband items are involved in the instant case, as such the embargo under Section 37 of the NDPS Act will come into play. Hence, the learned Addl. P.P has opposed in granting bail to the petitioners. However, learned Addl. P.P has admitted that the grounds of arrest has not been mentioned in the arrest memo of the petitioners. 11. Having heard the learned counsel for the parties and on perusal of the trial court record, the core issue involved in this case is the violation of the petitioners’ fundamental right under Article 22(1) of the Constitution of India as the petitioners were not informed about the grounds of their arrest. 12. Section 50 of Cr.PC (Section 47 BNSS) reads as follows – “1. Person arrested to be informed of grounds of arrest and of right to bail – (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any Page No.# 6/12 person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 13. Section 50 (A) of Cr.PC reads as follows – “50 A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person – (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a Page No.# 7/12 book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person. 14. Article 22 of the Constitution of India deals with protection against arrest and detention in certain cases which reads as follows – “(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. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate….” Page No.# 8/12 15. On a bare look at the aforesaid provisions, it reveals that the aforesaid provisions provide certain safeguards regarding arrest and detentions. It aims to protect the rights and liberties of the individuals who are arrested or detained by the authorities. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. They have the right to know the reasons behind their arrest, enabling them to effectively exercise their legal rights. Now the question comes if the arrest memo does not disclose the grounds of his/her arrest, on such technical ground, the accused be released on bail. 16. In the case of Vihaan Kumar (Supra), wherein the Hon’ble Apex Court has referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra) and the Court held as follows – “28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as per the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement Page No.# 9/12 to communicate the grounds of arrest is concerned. 29. 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 Article 22(1) and Article 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.” 17. In the aforesaid case, it was also observed that when an arrested person is produced before a Judicial Magistrate for remand, it is duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal. Therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights. 18. It is specifically mentioned in the case of Vihaan Kumar (Supra) 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. 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. Page No.# 10/12 19. Reverting to the case in hand, the arrest memo of the petitioners reflect the column like name and particulars of the person arrested, concerned PS Case No./G.D.E No., place of arrest, date and time of arrest, injuries present at the time of arrest, signature and name of relatives of the person arrested, signature of arrested person and the signature and full name of the arresting officer. There is no indication in the arrest memo regarding ground of arrest showing a different column. 20. The requirement of communicating the grounds of arrest in writing is not only to the arrested person but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person enabling them to effectively exercise their legal rights as observed by the Apex Court in Vihaan Kumar (Supra). 21. In another cited case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Subhash Sharma, it was held as follows– “Once a court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. Therefore, when arrest is Page No.# 11/12 illegal or vitiated, bail cannot be denied on the grounds of non- fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.” 22. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the grounds for their arrest and detention which is mandatory in nature. Article 22 safeguards individuals against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. Admittedly in the case in hand, there is no indication in the arrest memo that the accused petitioners were informed about the grounds for their arrest. Under such backdrop, this Court by following the decisions/observation of the Hon’ble Supreme Court as above, is inclined to grant bail to the petitioners. 23. Accordingly, the petitioners, namely, 1. Jasir Uddin Barbhuiya and 2. Piklu Das shall be released on bail, on furnishing bail bond of Rs.2,00,000/- (Rupees Two Lakh only) each with two suitable sureties each of the like amount, to the satisfaction of learned Sessions/Special Judge, Sribhumi (Karimganj). The direction for bail is further subject to the conditions that the petitioners: (a) shall not leave the territorial jurisdiction of learned Sessions/Special Judge, Sribhumi (Karimganj) without prior written permission from him/her; Page No.# 12/12 (b) shall regularly attend the trial court and cooperate with the court for early disposal of the trial; (c) 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 them from disclosing such facts to the Court. 24. It is pertinent to mention here that the findings of this court that the arrest of the petitioners’ stands vitiated will not affect the merits of the charge sheet and the pending case. 25. The bail application is disposed of accordingly. JUDGE Comparing Assistant