Page No.# 1/7 GAHC010245312024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3591/2024 TAJUL AHMED S/O AMIR UDDIN, R/O VILLAGE UTTAR KABARIBOND, PS. PATHARKANDI, DISTRICT KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MRS. S D CHOUDHURY, MD I H LASKAR,MR. M AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 11.04.2025 Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State. 2. By this second bail application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Tajul Page No.# 2/7 Ahmed, has prayed for bail in connection with Patharkandi P.S. Case No. 150/2024 corresponding to G.R. No.999/2024 under Sections 21(c)/25/29 of the NDPS Act read with Section 25(1-B)(a) of the Arms Act. 3. The factual matrix leading to this case is that an FIR has been lodged before the O/C Patharkandi P.S. stating, inter alia, that on receipt of an information in respect of trafficking of narcotic drugs, the police conducted search in Kabaribond Village in the house of Ruhel Ahmed and Tazul Ahmed, i.e., the present petitioner and found 4/5 persons in the backside courtyard of their residence and they carried some bags along with them. Having seen the police, they fled away from the spot. However, police managed to apprehend two persons, i.e., Sultan Ahmed and Albab Hussain and during search 350.9 grams of heroin were recovered and then seized from the bags carrying by them. During interrogation, they disclosed one Ruhel Ahmed and Tazul Ahmed, i.e., the present petitioner were involved in trafficking of such narcotics. However, after searching the house of Ruhel Ahmed and Tazul Ahmed, police recovered a two wheeler, cash of Rs.24,750/-, 65 numbers of plastic packets, which contains 143 numbers of empty plastic vials. Accordingly, a case was registered vide Patharkandi P.S. Case No. 150/2024 and accused persons were arrested. 4. It was urged by the learned counsel for the petitioner that though the police raided the house of the petitioner, but no any contraband item was recovered from his residence. Police seized only amount of cash and a two wheeler. Police also did not recover any arms from the possession of the present petitioner and hence, neither the NDPS Act nor the Arms Act is applicable against the petitioner. 5. The learned counsel for the petitioner has stressed his argument on the Page No.# 3/7 point that the accused petitioner was never supplied with the full particulars of the offence, for which he was arrested or other grounds of arrest at the time of his arrest, which is in violation of Section 47 (1) of BNSS corresponding to Section 50(1) Cr.P.C., rendering the arrest and subsequent remand of the accused petitioner invalid. In support of his submission, the learned counsel for the petitioner has relied on the following case laws- (i) Pankaj Bansal Vs. Union of India and Ors, reported in (2024) 7 SCC 576 (ii) Vihaan Kumar Vs. State of Haryana, (2025) SCC Online SC 269. 6. According to the learned counsel for the petitioner, in the instant case, as per arrest memo as well as Section 50 notice issued to the petitioner, the grounds of arrest has not been mentioned, which is mandatory in nature. As such, the petitioner is entitled for bail due to such irregularity committed at the time of his arrest. 7. In response, learned Addl. P.P. for the State has submitted that commercial quantity of contraband items were recovered from the conscious possession of the petitioner. As the commercial quantity of contraband is involved in the instant case, as such the embargo of Section 37 of the NDPS Act will come into play. Hence, the learned Addl. P.P. has opposed in granting bail to the petitioner. However, the learned Addl. P.P. has admitted that the grounds of arrest have not been mentioned in the arrest memo or Section 50 Cr.P.C. notice issued to the petitioner. 8. I have heard the learned counsels for the parties and also perused the scanned copy of the Trial Court record. 9. In the case of Vihaan Kumar (supra), wherein the Hon’ble Apex court Page No.# 4/7 has referred the case of Pankaj Bansal (supra) and the case of Prabir Purkayastha Vs. NCT of Delhi, reported in (2024) 8 SCC 254, it was observed 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 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. 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-complinace of this constitutional requirement and statutory mandate would lead to custody or the detention being rendered illegal, as the case may be.” 10. In the aforesaid case, it was also observed that when an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain 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. Page No.# 5/7 11. 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 ground of bail exists. The statutory restrictions do not affect the power of the Court to grant bail when the violation of Article 21 and 22 of the Constitution is established. 12. Reverting to the case in hand, the notice under Section 50 Cr.P.C. was issued on 04.07.2024 to the petitioner in connection with Patharkandi P.S. Case No.150/2024, which is reproduced as follows:- “You are hereby informed that you are arrested in connection with the above referred case/circumstances. The Section of the case is non- bailable to police. You will be forwarded before the Hon’ble Court of District & Sessions Judge, Karimganj today on 04/07/2024. You can move before the Hon’ble Court for your bail.” 13. Similarly, the arrest memo also contains case reference, date and time of arrest, place of arrest, injuries present at the time of arrest, signature and name of relative/witness of arrest, signature of the arrested person and name of the escort party. 14. From the aforesaid notice issued to the petitioner under Section 50 Cr.P.C. as well as arrest memo vide Patharkandi P.S. Case No.150/2024, it reveals that no grounds of arrest have been communicated to the petitioner as alleged, which is mandatory in nature. 15. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the grounds of arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in Page No.# 6/7 the arrest memo or the section 50 Cr.P.C. notice issued to the petitioner that the grounds of arrest was being informed to the petitioner at the time of his arrest. Accordingly, this Court is inclined to grant bail to the petitioner. 16. Accordingly, the petitioner, named above, shall be released on bail in connection with Patharkandi P.S. Case No. 150/2024 corresponding to G.R. No.999/2024 under Sections 21(c)/25/29 of the NDPS Act read with Section 25(1-B)(a) of the Arms Act, 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 sureties should be a Government employee of the State of Assam, to the satisfaction of learned Special Judge, NDPS, Sribhumi (Karimganj), Assam. The direction for bail is further subject to the conditions that the petitioner: (a) shall not leave the territorial jurisdiction of learned Special Judge, NDPS, Sribhumi (Karimganj), Assam 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; and (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. 17. It is pertinent to mention here that the findings of this Court that the Page No.# 7/7 arrest of the petitioner stands vitiated will not affect the merits of the pending case. 18. The bail application is disposed of accordingly. JUDGE Comparing Assistant