Page No.# 1/6 GAHC010239932024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3719/2024 SAHARUL ISLAM S/O LATE ABDUL MANNAN, R/O VILL LAMAJUAR, P.S. BADARPUR, DISTRICT KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED,U U KHAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 08.04.2025 1. Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Ms. N. Das, learned Additional Public Prosecutor for the State of Assam. 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Saharul Islam, who has been detained behind the bars in connection with Special (NDPS) Case No. 46/2024 corresponding to Nilambazar Page No.# 2/6 P.S. Case No. 92/2024 under Sections 22(c)/25/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that, on 13.04.2024, one Sujit Sinha, SI of Police had lodged an FIR before the Officer-in-charge of Nilambazar Police Station, inter alia, alleging that on receipt of an information through reliable sources that one black colour Kia Car bearing Registration No. AS-01-FK- 2939 is carrying huge quantify of narcotic drugs from Karimganj side to Nilambazar via National Highway No. 8, a naka checking was conducted at Srikrishnagar Colony near A1 Family Restaurant and the aforesaid vehicle was intercepted. There were two occupants in the said vehicle, namely, Abul Hasan and Saharul Islam (present petitioner) and the said vehicle was driven by one Abul Hasan. On search of the said vehicle, 10.916 Kgs of Yaba tablets were recovered from the said vehicle and the present petitioner was arrested on that day itself. 4. The learned counsel for the petitioner has submitted that while the petitioner was arrested, he was not informed about the ground of his arrest and there is a violation of the constitutional provisions contained in Article 22(1) of the Constitution of India as well as Section 52 of the NDPS Act, 1985 and Section 50 of the Code of Criminal Procedure, 1973. 5. It is submitted by the learned counsel for the petitioner that the notice under Section 50 which was served on the petitioner at the time of his arrest does not contained the ground of arrest. The only information contained in the said notice is the connected police station case number i.e., Nilambazar P.S. Case No. 92/2024 and the penal provisions involved in the case i.e., Sections 22(c)/25/29 of the NDPS Act, 1985. 6. On perusal of the said certified copy, it appears that apart from the Page No.# 3/6 case number i.e., Nilambazar P.S. Case No. 92/2024 as well as the penal provisions involved in the case i.e., Sections 22(c)/25/29 of the NDPS Act, nothing was mentioned in the said notice. 7. The learned counsel for the petitioner has also submitted that the arrest memo as well as inspection memo which were furnished at the time of arrest also does not contain the grounds of arrest. 8. The learned counsel for the petitioner submits that furnishing the ground of arrest to the person arrested at the time of his arrest is a constitutional as well as statutory mandate and failure to comply with the requirement of informing the ground of arrest as soon as possible after the arrest would make the arrest itself illegal. He also submits that once the arrest is vitiated, the arrested person cannot be detained in custody. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Vihaan Kumar –Vs- State of Haryana and Anr.”, reported in “2025 SCC OnLine SC 269”. 9. On the other hand, the learned Additional Public Prosecutor has fairly submitted that on perusal of the notice under Section 50 of the Code of Criminal Procedure, 1973, which is annexed as Annexure-A to the additional affidavit filed by the petitioner, it appears that the grounds of arrest were not stated in the said petition. 10. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available in this case. 11. I have also perused the copy of the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioner at the time of his arrest. I have also perused the arrest memo as well as inspection memo Page No.# 4/6 prepared at the time of arrest of the present petitioner. 12. It appears on perusal of the said notices that apart from the mentioning the police station case number i.e., Nilambazar P.S. Case No. 92/2024 as well as the penal provisions involved in the case i.e., Sections 22(c)/25/29 of the NDPS Act, no other information has been furnished therein. 13. The communicating of the grounds of arrest would require the communication of all such details in the hands of Investigating Officer which necessitated the arrest of the accused in a case. The ground of arrest is distinct from the communication regarding arrest made to the petitioner. In the case relied upon by the petitioner in the case of “Vihaan Kumar v. State of Haryana and Anr.” (supra), the Apex Court has observed that simply informing an individual of his arrest does not fulfill the constitutional and statutory requirement provided a grounds of arrest to the arrestee. 14. In the instant case, no such basic facts which necessitated the arrest of the present petitioner were communicated to him in the notice served upon him under Section 50 or in any of the other communications. Hence, there is clear violation of constitutional provisions of Article 22 of the Constitutional of India as well as Section 50 of the Code of Criminal Procedure, 1973 and Section 52 of the NDPS Act not furnishing the grounds of arrest to the petitioner at the time of his arrest. 15. In paragraph No. 20 of the judgment of the Apex Court, in the case of “Vihan Kumar Vs. State of Haryana and Another” (Supra), it is observed as follows: “20. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain Page No.# 5/6 whether compliance with Article 22(1) has been made. The reason is that due to noncompliance, 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.” 16. In view of the above discussion, the petitioner, namely, Saharul Islam, is entitled to be released on bail and accordingly, he is allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakh only) 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 Sessions Judge, Sribhumi, with the following conditions: i. That the petitioner shall cooperate in the investigation of the Nilambazar P.S. Case No. 92/2024; ii. That the petitioner shall appear before the Investigating Officer of the Nilambazar P.S. Case No. 92/2024 as and when so required by him for the sake of fair completion of the investigation; iii. That the petitioner 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; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details to the Investigating Officer; v. That the petitioner shall not leave the jurisdiction of the Court of learned Sessions Judge, Sribhumi without prior permission of said Court and when such leave is granted by the said Court the petitioner shall submit his leave address and contact details during such leave before the Page No.# 6/6 said Court; and vi. That the petitioner shall not commit any offence while on bail. 17. With the above observations, this bail application is disposed of. JUDGE Comparing Assistant