Page No.# 1/11 GAHC010241762024 2025:GAU-AS:3559 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3519/2024 MAFUJUL ISLAM @ MAFUZUL ISLAM S/O NASU MIA KAZI VILL AND P.O. MATINAGAR P.S. SUNAMURA DIST. SIPAHIJALA, TRIPURA-799131 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A M BORA, MR. D K BAIDYA,MR. A K HANNAN,MR M J QUADIR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 27.03.2025 Heard Mr. A.M. Bora, learned senior counsel, assisted by Mr. D.K. Baidya, learned counsel for the petitioner and Ms. S.H. Borah, learned Addl. P.P for the Page No.# 2/11 State. 2. The petitioner, namely, Mafujul Islam @ Mafuzul Islam has preferred this application u/s 483 of BNSS, 2023 seeking bail in connection with Special NDPS Case no.59/2024 u/s 22(c)/29 of the NDPS Act (arising out of Bazaricherra PS Case No.99/2024), pending in the Court of learned Additional Sessions Judge, Sribhumi (Karimganj). 3. The prosecution case in brief is that an FIR has been lodged on 17.05.2024, before the in-charge Churaibari Watch Post under Bazaricherra PS stating inter alia that while naka checking was conducted near Churaibari Watch Post of NH-8, one brown and yellow color ten wheeler container body truck bearing registration no. NL-01-AC-0700, coming from Delhi side towards Tripura arrived at naka checking point and accordingly, the truck was stopped for checking. During checking total 16 nos. of cartons containing Triprolidine Hydrochloride and Codein Phosphate Cough Syrup Phensedyle were recovered and seized. Accordingly, a case was registered vide Bazaricherra P.S Case No.90/2024 u/s 22(c)/29 of the NDPS Act and the driver of the truck namely Jayanta Deb was arrested. 4. The same informant of Bazaricherra P.S Case No.90/2024 lodged another FIR on 30.05.2024 before the O/C, Bazaricherra P.S alleging that during routine naka checking, one brown and yellow color ten wheeler container body VRL truck bearing registration no. HR-37E-4234 was stopped for checking. During checking, 14 nos. of cartons found containing Codein and Triprolidine Hydrochloride ESKUF Syrup were recovered and seized. Accordingly, Bazaricherra P.S Case No.99/2024 was registered u/s 22(c)/29 of the NDPS Act. The driver Kuldeep Yadav and two other persons travelling in the truck were arrested. Page No.# 3/11 5. The present petitioner was intercepted on 15.09.2024 at Patharkandi by- pass of the National Highway, while the petitioner was on the way from Badarpur to his residence in Tripura along with his friend Ashak Mia and his driver namely Taibur Rahman in a Scorpio vehicle. Accordingly, the petitioner was arrested on 16.09.2024 in connection with Bazaricherra P.S Case No.90/2024. Subsequently on 03.10.2024, the I.O of the present case submitted application before the learned Sessions Judge for passing an order for making shown arrest of the petitioner along with two other accused persons on the ground that as per statement of the arrested accused persons, it was revealed that the present petitioner and the two co-accused were the agents who had passed cough syrup from Assam to Tripura, through Churaibari Gate since long. Accordingly, the petitioner has been shown arrested in connection with Special NDPS Case no.59/2024 (arising out of Bazaricherra PS Case No.99/2024). 6. It was urged by the learned counsel for the petitioner that the petitioner never contacted with the arrested accused from whom the alleged cough syrup was recovered. He never involved in transportation of any narcotic items as alleged against him. In the instant case, the petitioner has been arrested merely on suspicion. No any contraband items were recovered from the possession of the petitioner. The seized contraband substances have not been transported through any conveyance owned by the petitioner. The petitioner has not at any point of time been arrested or implicated in such criminal offence of having involved in any NDPS Cases prior to the instant FIR. 7. The learned counsel for the petitioner further stressed his argument on the point that the petitioner was shown arrested on 04.10.2024. But no grounds of arrest were communicated to the petitioner in the notice served upon him u/s Page No.# 4/11 50 of Cr.PC (S.47 of BNSS) and no due notice was served to his representative u/s 50A Cr.PC (S.48 of BNSS) as well as Article 22(1) of the Constitution of India and the same has been held to be mandatory by the Hon’ble Supreme Court which held that the arrest of an accused is invalid under such circumstances and on this grounds, the accused may be enlarged on bail. The learned counsel for the petitioner has relied on the following case laws - a) (2025) SCC Online SC 269 (Vihaan Kumar Vs. State of Haryana and another) b) Bail application No.576/2025 (Mahbubul Hoque Vs. State of Assam) 8. In response, learned Addl. P.P. Ms. Borah has submitted that as the commercial quantity of contraband items are involved in the instant case as such, the embargo u/s 37 of the NDPS Act will come into play. However, learned Addl. P.P has admitted that in Section 50 notice, there is no reflection regarding grounds of arrest. But learned Addl. P.P tried to convince this Court that when the prayer was made before the learned Sessions Judge, Sribhumi (Karimganj) for passing an order for making shown arrest of the accused petitioner, the grounds of arrest has been mentioned. 9. It is further submitted that the accused has been shown arrested in this case. As such, further grounds of arrest may not be informed with separately. Accordingly, learned Addl. P.P has prayed for dismissal of the bail application. 10. I have considered the submission of the learned counsel for the parties and I have also perused the trial court record including the order dated Page No.# 5/11 04.10.2024. 11. 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 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. 12. Section 50 (A) of Cr.PC [Section 48 BNSS] 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 Page No.# 6/11 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 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. 13. 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 Page No.# 7/11 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….” 14. 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. 15. The question to be decided in this bail application whether the person shown arrested in connection with another case has to be informed about the grounds for such arrest or detention. 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 Page No.# 8/11 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 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. 19. It was further observed that mentioning the grounds of arrest in the Page No.# 9/11 remand report is no compliance with the requirement of informing the arrestee of the grounds of arrest. 20. Proceeding to the case in hand, it is reflected that notice u/s 50 Cr.PC was served to the petitioner on 04.10.2024 in connection with Bazaricherra P.S Case No.99/2024 u/s 22 (c)/25/29 of NDPS Act which reads as follows – “You are hereby informed that you have been put under shown arrest in connection with above reference case. You may proceed before the Court through your private counsel/government provided counsel for your bail etc.” 21. From the aforesaid notice, it does not disclose any grounds being informed to the petitioner of his shown arrest in connection with Bazaricherra P.S Case No.99/2024. 22. In the 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 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.” Page No.# 10/11 23. Situated thus, the settled principle of law is that an arrested person must be informed of the grounds for his arrest and detention which is mandatory in nature. Article 22 safeguards the individual 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. In the instant case, there is no reflection in the Section 50 Cr.PC notice served to the petitioner dated 04.10.2024 that the accused petitioner was informed about the grounds for his shown arrest. Under such backdrop, this Court by following the observation of the Hon’ble Supreme Court as stated above, is inclined to grant bail to the petitioner. 24. Accordingly, the petitioner, above named, shall be released on bail, on furnishing bail bond of Rs.2,00,000/- (Rupees Two Lakh only) with two suitable sureties of the like amount out of which one of the surety must be a government employee of Assam, to the satisfaction of learned Additional Sessions Judge, Sribhumi (Karimganj). The direction for bail is further subject to the conditions that the petitioner: (a) shall not leave the territorial jurisdiction of learned Additional Sessions Judge, Sribhumi (Karimganj) without prior written permission from him/her; (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 him from disclosing such facts to the Court. 25. It is pertinent to mention here that the findings of the court that the arrest of the petitioner stands vitiated will not affect the merits of the pending case. Page No.# 11/11 26. The bail application is disposed of accordingly. JUDGE Comparing Assistant