Page No.# 1/9 GAHC010222782024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3243/2024 MD MAMON HUSSAIN S/O MD. JAKIR HUSSAIN, RESIDENT OF JAYANTIA BASTI, PS HOJAI, DIST HOJAI, ASSAM 2: MD MUSSADIK ALAM @ MD MUSADDIK ALAM S/O MD. MOFIK UDDIN RESIDENT OF JAYANTIA BASTI PS HOJAI DIST HOJAI ASSA VERSUS THE STATE OF ASSAM REP BY PP ASSAM Advocate for the Petitioner : MR. N MAHAJAN, MR. D BORA,MR. P K DAS,MR. A CHAUDHURY Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.03.2025 1. Heard Mr. A. Choudhury, the learned counsel for the petitioners. Also heard Mr. D. Das, the learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioners, namely, (1) Md. Mamon Hussain, and (2) Md. Mussadik Alam @ Md. Musaddik Alam, who have been detained behind the bars since 09.08.2024 in connection with special NDPS Case No. 115/2020 corresponding to Tezpur P. S. Case No. 416/2024 under Section 21(c)/29 of NDPS Act, 1985 pending before the Court of learned Special Judge Sonitpur, Tezpur. 3. The gist of accusation against the present petitioner is that on 15.07.2024, one Bablu Khanikar, S. I. of Police, lodged an FIR before the Officer-in-Charge of Tezpur Police Station, inter-alia, alleging that on receipt of an information regarding transportation of huge quantity of narcotic drugs from Nagaon towards Lakhimpur, a police team along with the informant proceeded towards Dolabari area and during search operation, vehicle bearing registration No. AN-09-E-8185 was intercepted and same was searched. 4. During the search of the said vehicle, 612 grams of suspected heroin was found kept in the soap cases. The occupants of the vehicle namely Rajeev Islam, Jeyabur Rahman, Faizul Islam and Fakhruddin Ali were Page No.# 3/9 apprehended. 5. On receipt of this said FIR, Tezpur P. S. Case No. 416/2024 was registered and investigation was initiated. 6. During the course of the investigation, the above-named petitioners were arrested along with four other accused persons. After completion of the investigation, charge sheet was laid against 13 numbers of accused persons including the above-named petitioners under Section 21(c)/29 of NDPS Act, 1985. 7. Mr. A. Choudhury, the learned counsel for the petitioners has submitted that the petitioners are innocent and in no way involved in the offense alleged in this case. 8. He submits that nothing was recovered from the possession of the present petitioners and they are implicated only on the basis of the statement of co-accused recorded under Section 67 of the NDPS Act, 1985. He submits that such statements of co-accused are inadmissible in evidence in view of the judgment of Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in (2021) 4 SCC 1. 9. The learned counsel for the petitioners further submits that the petitioners are also praying for bail on the ground that their constitutional rights under Article 22 (1) of the Constitution of India as well as statutory rights under Section 47 of BNSS, 2023 and 52 (1) of NDPS Act, 1985 were violated in this case and therefore, their arrest itself got vitiated and they are entitled to get bail on that ground alone. 10. The learned counsel for the petitioners has submitted that in the notice under Section 47 of BNSS, 2023 which were served on the petitioners on Page No.# 4/9 09.08.2024, the only information provided there was the case number i.e., the Tezpur P. S. Case No. 416/2024 and the penal provision involved in this case i.e., under Section 21(c)/29 of NDPS Act, 1985. No basic facts which necessitated the arrest of the petitioners or other grounds of arrest were informed to them as mandated by the Constitution of India. 11. The learned counsel for the petitioners submits that the notice under Section 47 of BNSS, 2023 the petitioners were only intimated about the fact of their arrest and they were not informed about the grounds for their arrest and therefore, there is a violation of the constitutional as well as statutory mandate regarding providing the grounds of arrest and the time of arrest to the petitioners. 12. On the other hand, the learned Additional Public Prosecutor, Mr. D. Das, has vehemently opposed the prayer for bail of the present petitioners on the ground that the quantity of contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 13. He however, fairly submits that in the notice served on the petitioners under Section 47 of the NDPS Act, 1985 apart from the case number of the Tezpur P.S. Case No. 416/2024 and the penal provisions involved in the case, no grounds of arrest has been furnished to the petitioners. 14. I have considered the submissions made by the learned counsel for both sides and have perused the scanned copy of the case record of special NDPS Case No.115/2024, which was requisitioned in connection with this case. 15. On perusal of the case record, it appears that the notice issued to the Page No.# 5/9 present petitioners under Section 47 of the BNSS, 2023 only contains the information regarding the police station case number as well as the penal provisions involved in this case. No other information is provided in the said notice. Neither the arrest memo mentions about the grounds of arrest of the present petitioners. 16. Article 22 (1) of the Constitution of India provides 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.” 17. Section 47 of the BNSS, 2023 provides as follows: “47. (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 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.” 18. A plain reading of the above constitutional and statutory provisions reveals that informing an arrestee of the grounds for his arrest is not only a statutory right but also a constitutional mandate, which the arresting authority is duty-bound to uphold. 19. The observations made by the Apex Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi) (supra) are very relevant in this regard and same are reproduced here in below: Page No.# 6/9 “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 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 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 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………………………………………………… “21. 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. 48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase “reasons for Page No.# 7/9 arrest” and “grounds of arrest”. The “reasons for arrest” as indicated in the arrest memo are purely formal parameters viz. to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigating officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the “grounds of arrest” would be required to contain all such details in hand of the investigating officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the “grounds of arrest” would invariably be personal to the accused and cannot be equated with the “reasons of arrest” which are general in nature.” 20. In the instant case except the fact that the petitioners were served with the notice under Section 47 of BNSS, 2023, the prosecution side has not been able to show anything to satisfy this court that the grounds of arrest of the petitioners in this case were communicated to them. As already discussed here in above, the notice under Section 47 of the BNSS, 2023 served on the present petitioners only contain the information regarding their arrest in connection with Tezpur P. S. Case No. 416/2024 and the penal provisions involved in the case. Nothing else has been mentioned in Page No.# 8/9 the said notice. 21. The Apex Court, in the case of Vihan Kumar Vs. State of Haryana & Another (Supra), has categorically held that mere information about an arrest is distinct from the communication of the grounds for such arrest. Simply informing an individual of his arrest does not fulfill the constitutional and statutory requirement of providing the grounds of arrest to an arrestee. 22. In the present case as discussed hereinabove, the notice issued to the petitioners under Section 47 of the BNSS, 2023 merely states that they were arrested under in connection with Tezpur P. S. Case No. 416/2024 under Section 21(c)/29 of NDPS Act, 1985 without disclosing the basic facts necessitating the such arrest. 23. The prosecution side has failed to satisfy this Court that the grounds of arrest as mandated under Article 22(1) of the Constitution of India as well as Section 47 of the BNSS, 2023 and 52(1) of the NDPS Act, 1985 were furnished to the petitioners. There appears to be clear violation of the constitutional and statutory mandate rendering the arrest of the petitioners illegal. 24. In the case of Directorate of Enforcement Vs. Subhash Sharma reported in 2025 SCC On line SC 240 , the Apex Court has observed as follows: - “8. 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 Page No.# 9/9 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.” 25. In view of the above discussion, the petitioners, namely, (1) Md. Mamon Hussain, and (2) Md. Mussadik Alam @ Md. Musaddik Alam, are allowed to go on bail of Rs. 1,00,000/- (Rupees One lakh only) each with two sureties of like amount (one of whom should be a resident of the State of Assam) subject to the satisfaction of the learned Special Judge Sonitpur, Tezpur with the following conditions: i. That the petitioners shall cooperate in the trial of the NDPS Case No. 115/2020; ii. That the petitioners shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Investigating Officer; iii. That the petitioners shall provide their contact details including photocopies of their Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details to the Trial Court; iv. That the petitioners shall not leave the jurisdiction of the Court of learned Special Judge Sonitpur, Tezpur without prior permission of said Court and when such leave is granted by the said Court the petitioner shall submit their leave address and contact details during such leave before the said Court; and v. That the petitioners shall not commit any offence while on bail. 26. With the above observations, this bail application is disposed of. JUDGE Comparing Assistant