Page No.# 1/9 GAHC010268912024 2025:GAU-AS:3986 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3954/2024 SMTI SANGITA DAS W/O SRI ANKUR DAS R/O NO. 1 MORAN GAON, GORAGURI P.S. TITABAR, DIST. JORHAT, ASSAM, PIN-785630 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. S TAI, MR. P BOIRAGI Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 03.04.2025 Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. K. K. Das, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 43/2024, arising out of Titabar P.S. Case No. 42/2024, under Sections 20(b)(ii)(C) of NDPS Act, pending before the Court of learned Special Judge, Jorhat. 3. Scanned copy of the case record has already been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Sarma, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from her conscious possession. However, she was arrested in connection with this case on 10.07.2024 and for last 267 days, she has been in custody. He further submitted that on the day of her arrest, the police visited their house in search of her husband and as her husband was not present in the house, she, along with her 3 (three) years old minor daughter, was arrested by the police. He further submitted that the minor daughter of the present petitioner, who is also inside the jail along with the petitioner, is suffering from various ailments Page No.# 3/9 including chickenpox and hence they are facing very difficulty in the jail premises. More so, the petitioner was not aware that her husband deals with the business of ganja. Further he submitted that from the Forwarding Report itself, if is seen that nothing was recovered from her body search. The charge- sheet of the case was filed on 25.10.2024, but till date, out of 9 (nine) numbers of witnesses, only 1 (one) witness has been examined by the prosecution. Thus, Mr. Sarma submitted that considering the length of detention and also considering the ground that her minor child is suffering from various ailments, the present petitioner may be released on bail. 5. Mr. Das, learned Additional Public Prosecutor, submitted in this regard that from the grounds of arrest, it is seen that the accused/petitioner was very much aware about the availability of ganja in their house and she also knew that her husband is engaged in trafficking of ganja. More so, he submitted that the entire contraband was recovered from the conscious possession of the accused/petitioner, i.e. from the house of the accused/ petitioner, and thus, it can be held that the present petitioner was very much aware of the contraband which was kept in their house. Charge-sheet of the case has already been filed on 25.10.2024 and the last date before the learned Trial Court below was fixed on 04.02.2025. Further Mr. Das submitted that in the scanned copy of the case record, there is a report from the jail authority wherefrom it is seen that the minor daughter of the petitioner is having good health condition and at present she is not suffering from any kind of ailments. 6. Mr. Das further submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to Page No.# 4/9 be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage. 7. After hearing the submissions made by the learned counsels for both sides and also on perusal of the case record, it is seen that the seizure was made from the house of the accused/petitioner. However, it is an admitted fact that nothing has been recovered from her body search and the entire contraband was alleged to have been recovered from the house of the accused/petitioner and hence, the statement made by the learned Additional Public Prosecutor that she was aware about the contraband in her house cannot be out rightly rejected. More so, from the materials available in the Case Diary, it is seen that there are sufficient incriminating materials so far collected by the I.O., wherefrom it is seen that the petitioner was not only aware about the availability of the contraband in her house, but also involved in the alleged trafficking of ganja. 8. However, while perusing the scanned copy of the case record, more particularly, the Arrest Memo and the Notices issued to the present accused/petitioner as well as her family members under Sections 47 & 48 of BNSS, it is seen that while issuing the said Notices, though the name and the Page No.# 5/9 address of the accused/petitioner along with the case number as well as the Sections under which she was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notices. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to her family members at the time of her arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which she was taken into custody of police. 9. The Hon’ble Apex Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, has held in paragraph Nos. 19, 21 & 48 of the judgment as under: “19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a 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. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India. 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 3 (2000) 8 SCC 590committed 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 arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as Page No.# 6/9 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 tempering 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.” 10. Further, in the case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, the Hon’ble Apex Court has held has under: “14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.” 11. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notices issued Page No.# 7/9 to the present accused/petitioner as well as her family members under Sections 47 & 48 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Sections 47 & 48 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider her bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act. 12. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph No. 16 of the said judgment has held as under: “16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.” Page No.# 8/9 13. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering her bail application at this stage as the charge has already framed and the trial has also commenced and already 1 (one) witnesses has been examined by the prosecution. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notices issued to the present accused/petitioner and her family members under Sections 47 & 48 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount to the satisfaction of the learned Special Judge, Jorhat, the accused/petitioner, namely, Sangita Das, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Jorhat, on each and every date to be fixed by the Court; (ii) that the petitioner 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 or to any police officer; Page No.# 9/9 (iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Jorhat; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Jorhat, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant