Page No.# 1/7 GAHC030002762025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./17/2025 Sh. Faizur Rahman Barbhuiya Bagha Bazar, Loknathpur, Cachar, Assam VERSUS The State of Mizoram r/b Commissioner and Secretary to Govt. of Mizoram, Excise and Narcotics Dept. Aizawl Advocate for the Petitioner : Mr. Jonathan L Sailo Advocate for the Respondent : P.P./Addl.PP, Mizoram B E F O R E HON’BLE MR. JUSTICE KAUSHIK GOSWAMI 20.05.2025 Heard Mr. Jonathan L. Sailo, learned counsel for the accused/petitioner. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent. 2. This is an application filed under Section 483 of the Bharatya Nagarik Suraksha Sanhita (BNSS), 2023 read with Section 37 of ND&PS Act, 1985 for grant of bail to the accused/petitioner i.e. Sh. Faizur Rahman Barbhuiya, who was arrested on 13.02.2024 in connection with Excise & Narcotics Case No. N-30/2024, SR No. 118/2024. 3. The brief facts of the case is that on 12.02.2024, the jurisdictional Sub- Page No.# 2/7 Inspector of Excise & Narcotics upon receiving an information that two persons of Lengpui Village are going to transport heroin by a pick-up truck and after carrying out the necessary formalities proceeded to intercept the suspected vehicle. Thereafter, on 13.03.2024, the said Team intercepted the suspected vehicle being TATA 207 Registration No. MZ 04-A-1428 and found therein two passengers namely, Sh. Nangzagina and Sh. Roluahpuia and that while they were detaining them, one person, i.e. Tluanga gave them direction through mobile phone to deliver some heroin to one non-Mizo person at Lungdai village. Accordingly, the Team immediately rushed to the said location where they saw the accused/petitioner waiting to receive the heroin that was to be delivered by the two co-accused. Thereafter, the vehicle was searched wherefrom 5 jute sack containing 300 soap cases (off white 149 nos, Green 60 nos, Blue 28 nos, Red 56 nos and Dark Grey 7 nos) containing suspected heroin were found which upon weighing was found approximately of 3.642 kg of suspected heroin. Thereafter, the contraband articles were seized alongwith the vehicles and accordingly, a case was registered and the accused/petitioner alongwith the other 2 co-accused were also arrested. Hence, the present bail application. 4. Mr. Jonathan L. Sailo, learned counsel for the accused/petitioner submits that the arresting authority while arresting the accused/petitioner has not informed the ground of arrest to him and had also not informed his right of bail. As such his constitutional and fundamental right guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the accused/petitioner is entitled to be released forthwith. 5. In support of the aforesaid submission, he relies upon the following decisions of the Apex Court:- (1) Vihaan Kumar Vs. State of Haryana & Another, 2025 SCC OnLine SC 269. (2) Prabir Purkayastha Vs. State (NCT of Delhi), (2024) 8 SCC Page No.# 3/7 254. (3) Directorate of Enforcement Vs. Subhash Sharma, 2025 SCC OnLine SC 240. 6. Per contra, Ms. Vanneihsiami, learned Addl. Public Prosecutor fairly submits that from the case record made available to her, it is not discernable as whether the ground of arrest and the right for bail as mandated under Article 22(1) of the Constitution of India has been communicated to the accused/petitioner or not. 7. I have considered the submission advanced by the learned counsels for the parties and also perused the materials available on record. 8. The primary ground urged in this bail application is as regard non-compliance of the constitutional and fundamental right of the accused/petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. 9. Apt to refer to Article 21 and 22(1) of the Constitution of India which reads as hereunder:- “21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law. 22. Protection against arrest and detention in certain cases.- (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.” 10. Reading of the said Articles, it is apparent that it is in relation to protection of life and personal liberty and that this protection can only be taken away in accordance with procedure established by law. It is further clear that under Clause 1 of Article 22 of the Constitution of India, it gives twofold protection to an arrested person, firstly, he shall not be detained in custody without being told the ground of such arrest and secondly, he shall not be denied the right to consult and to be defended by a legal Page No.# 4/7 practitioner of his choice. 11. A further protection under Clause 2 of Article 22 is provided to the arrested that upon arrest, he must be produced before the nearest Magistrate within a period of 24 hours of his arrest. Therefore, it is the fundamental right of an arrestee to be informed, firstly, as soon as may be, of the ground of his arrest and his right to consult and to be defended by legal practitioner of his choice and secondly, to be produced before the nearest Magistrate within 24 hours of his arrest. 12. This right is guaranteed to an arrestee under the Constitution of India; if it is taken away from the arrestee, it would be depriving him of his right to liberty which being his precious fundamental right, such arrest would be in total violation of his fundamental right (Refer:- State of Madhya Pradesh Vs. Shobharam & Others., reported in AIR 1966 SC 1910.) 13. Keeping the aforesaid principle in mind, upon examining carefully the case diary, it appears that no notice whatsoever constituting the facts leading to the arrest of the accused/petitioner and the information as regards his right to consult and to be defended by a lawyer of his choice has been issued. It further appears that there is nothing also available in the case diary to indicate that the aforesaid mandatory requirement of the first part of the Clause 1 of Article 22 has been complied with by the arresting authority at the time of arresting the accused/petitioner. It further appears from the arrest memo issued to the accused/petitioner that the basic facts on which he was arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail is not imparted to him. Pertinent more, that there is neither any mention of the offence nor the provision of the law under which the accused/petitioner has been arrested. In fact, it appears that the brief facts mentioned in the arrest memo is not personal or specific to the accused/petitioner and are general in nature and therefore, it cannot be acquitted to the reason of his arrest. (Refer:-Prabir Purkayastha Vs. State (NCT of Delhi)(Supra)). Page No.# 5/7 14. In view of the above, it is established that the fundamental right of the accused/petitioner under Article 21 and 22(1) of the Constitution of India have been violated. Reference in this regard is made to the decision of the Apex Court in the case of Directorate of Enforcement Vs. Subhash Sharma(Supra), wherein the Apex Court has clearly held that in the event there is a violation of fundamental right of the accused/petitioner in relation to his arrest, this Court has no choice but to grant bail. Paragraphs 8 and 9 of the aforesaid Judgment is reproduced hereunder for ready reference:- “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 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. 9.Therefore, when arrest is illegal or is 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.” 15. Reference is also made to the decision of the Apex Court in the case Vihaan Kumar Vs. State of Haryana & Another (Supra) wherein the Apex Court has clearly held that in the event there is a violation of Articles 21 and 22(1) of the Constitution of India, the statutory restriction shall also not affect the power of this Court to grant bail. 16. In the present case, it is absolutely clear that neither the ground of arrest nor the right to consult and to be defended by a lawyer of his choice were informed to the accused/petitioner at the time of his arrest. Hence, the arrest of the accused/petitioner is totally illegal. As such, the arrest of the accused/petitioner stands Page No.# 6/7 totally vitiated. That being so, the rigors of Section 37 of the ND&PS Act, 1985 does not affect the power of this Court to grant bail to the accused/petitioner. Therefore, the detention of the accused/petitioner in the custody is totally unjustified. This Court cannot also be unmindful of the fact that the accused/petitioner is languishing in the Jail for the last almost 463 days and out of 8 prosecution witnesses, only 3 have been examined till date. 17. Be that as it may, in view of the fact that the arrest of the accused/petitioner is illegal, this Court is of the unhesitant view that the accused/petitioner is liable to be released forthwith. Accordingly, it is provided that the accused/petitioner named above is allowed to go on bail in connection with the above noted case with a bail bond of Rs. 50,000/- (Rupees Fifty thousand) only with two sureties of like amount, provided that one surety has to be a Government Servant to the satisfaction of the learned Trial Court, subject to the following conditions: (i) That the accused/petitioner shall regularly appear before the learned Trial Court on all dates to be fixed from time to time till the case is disposed of; (ii) That the accused/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/her from disclosing such facts to the Court; and (iii) That the accused/petitioner shall refrain from committing any offences similar to the one of which he is accused. (iv) That the accused/petitioner shall submit his photo copy of the Aadhar Card and PAN Card if available before the Trial Court; and (v) That the accused/petitioner shall not leave the jurisdiction of the learned Trial Court without prior permission. 18. In terms of the above, the bail application stands allowed and disposed of. Page No.# 7/7 JUDGE Comparing Assistant