Page No.# 1/16 GAHC030005282025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./35/2025 Sh. Thangngaihlian S/o Kapzanang, R/o Khawmawi, Myanmar, P/A Thuampui, Aizawl VERSUS The State of Mizoram and Anr. Aizawl Advocate for the Petitioner : Mr Laltanpuia Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HONOURABLE MR. JUSTICE NELSON SAILO ORDER 25.09.2025 Heard Mr. Laltanpuia, learned counsel for the applicant and Ms. Vanneihsiami, learned Additional Public Prosecutor, Mizoram. [2.] This is a bail application submitted by the applicant under Section 483 of BNSS read with Section 37 of the ND&PS Act, 1985 for release of the applicant Page No.# 2/16 on bail. [3.] The applicant had earlier approached this Court by filing Bail Application No. 63 of 2023 and this Court vide Order dated 08.12.2023 rejected the same. According to the applicant, he had also submitted Bail Application No. 69 of 2025 before the Special Judge, ND&PS, where the same was rejected vide Order dated 12.03.2025. [4.] It is the case of the applicant that he was arrested on 26.03.2023 at 02:10 PM near Zarkawt Police Point on account of recovery of 40 grams of Heroin from him and later, 313 grams of Heroin was also recovered from his rented house at 03:35 P.M. Therefore, a total of 353 grams of Heroin was recovered. As a result of the said recovery, Excise Case No. EX-N-80/2023 dated 27.03.2023 under Section 21(c) of the ND&PS Act was registered and investigated into. Upon conclusion of the investigation, the Investigating Authority submitted the chargesheet No. EX(ANS)-134/2023 dated 23.06.2023 and trial is underway. The prosecution has cited eight (8) witnesses and according to the learned counsel for the applicant, the prosecution evidence has now been closed by dropping PW5. He submits that the applicant was examined under Section 313 Cr.P.C. on 08.09.2025 and the applicant will be having two (2) defense witnesses including himself. Page No.# 3/16 [5.] The learned counsel for the applicant submits that the Section 50 of the ND&PS Act has not been complied with since the applicant was not informed whether he wanted to be searched before a Gazetted Officer or a Magistrate. Secondly, Section 42 has not been complied with by the Arresting Authority. He submits that compliance of Section 42 is mandatory and that it is a relevant fact which should be considered by the Court while dealing with a Bail Application. In support of his submissions, the learned counsel has relied upon the case of Sarija Banu alias Janarthani alias Janani and Anr. Vs. State through Inspector of Police, (2004) 12 SCC 266. [6.] The learned counsel further submits that while being arrested, the applicant was not communicated in writing about the grounds of his arrest and at such the right provided under Article 22(1) of the Constitution of India has been violated. In this connection, the learned counsel relies upon the case of Pankaj Bansal Vs. Union of India & Ors., (2024) 7 SCC 576. [7.] Per contra, Ms. Vanneihsiami, learned Additional Public Prosecutor,Mizoram, submits that 40 grams of suspected heroin was seized from the applicant on 26.03.2023. She submits that the applicant himself took out the suspected heroin which he kept in three (3) soap cases inside a black polythene which he kept in his jacket worn by him. Since there was no body Page No.# 4/16 search, there is no question of violation of Section 50 of the ND&PS Act. As regards, the second recovery of 313 grams of suspected heroin which was kept in twenty four (24) soap cases on the same day, the same were recovered on the basis of the information given by the applicant himself. Under the circumstances, the applicant cannot claim that the Section 42 of the ND&PS Act has been violated. The learned Additional Public Prosecutor further submits that as regard the violation of Article 22(1) of the Constitution of India is concerned, it can be seen from the seizure and arrest memo that the applicant was informed about his rights regarding Section 50 of the ND&PS Act and that an intimation of his arrest was given to his daughter at his residence. At any rate, the applicant is fully aware, as to why he has been arrested and therefore he had submitted two (2) bail applications earlier for his release. She submits that the earlier two (2) bail applications of the applicant have been considered and rejected and that the present bail application is without any new ground for seeking bail and therefore, the bail application should be rejected. She also submits that the trial is at the verge of conclusion, as already submitted by the learned counsel for the applicant himself and thus for these reasons, the bail application should be rejected. [8.] I have heard the submissions made by the learned counsels for the rival Page No.# 5/16 parties and I have perused the materials available on record. Although, the applicant has not annexed a copy of the Order dated 08.12.2023 passed in Bail Application No. 63 of 2023, which was earlier submitted by the applicant and where the bail was rejected, a perusal of the said Order would go to show that the applicant had raised similar grounds for seeking bail, i.e., violation of Section 42 of the ND&PS Act and violation of Section 50 of the same Act. Upon considering the same, this Court had rejected the grounds taken in the bail application and accordingly refused bail to the applicant. Such being the case, it would not be necessary to once again revisit the grounds taken for grant of bail, insofar as they pertain to the claimed violation of Section 42 & Section 50 of the ND&PS Act. [9.] The applicant in the instant bail application has now contended that his right under Article 22(1) of the Constitution of India has been violated and in support of the same, reliance has been placed to the case of Pankaj Bansal Vs. Union of India & Ors., (2024) 7 SCC 576. The claim of the applicant is that he should be released on bail on account of non-compliance of Article 22(1) of the Constitution of India. For ready perusal, Article 22(1) is abstracted below:- "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 Page No.# 6/16 be denied the right to consult, and to be defended by, a legal practitioner of his choice." [10.] The case of Pankaj Bansal (supra) is a matter relating to Prevention of Money Laundering Act, 2002 (PMLA). The brief facts of the case was that an FIR was registered by the Anti-Corruption Bureau, Panchkula, Haryana, under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988 (PC) read with Section 120-B Indian Penal Code (IPC) for the offences of corruption and bribery along with criminal conspiracy. There were persons named in the FIR except for the applicant. Prior to the FIR filed on 17.04.2023, thirteen (13) FIRs had been registered in the years 2018 and 2020 in respect of certain illegalities on the part of the management responsible for two (2) residential projects. The name of the appellant also did not figure amongst those named as accused in the FIR. However, the appellant secured an interim protection from the Delhi High Court having apprehension of his arrest. It was the case of the respondent authorities that although, the appellant was served summons asking him to be present before the Investigating Officer on the date and time given but he refused to receive the same. Consequently, the appellant was arrested under Section 19 (1) of the PMLA and the Court concerned granted his custody to the Enforcement Directorate (ED) for five (5) days which was again extended for Page No.# 7/16 five (5) more days and thereafter he was sent to judicial custody. Against such action, the appellant approached the High Court but his writ petition came to be dismissed. [11.] Examining the Appeal filed by the appellant, the Apex Court pointed that the failure of the appellant to respond to the questions put up by ED would not be sufficient in itself for the Investigating Officer to opine that he was liable to be arrested under Section 19 of the PMLA, as the said provision specifically requires him to find reason to believe that he is guilty of an offence under the PMLA. Mere non-cooperation of the witness in response to the summons issued under Section 50 of the PMLA would not be enough to render him liable to be arrested under Section 19 of the same Act. Taking into the account the provision of Article 22(1) of the Constitution of India, the Apex Court opined that the same being the Fundamental Right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily to be meaningful so as to serve intended purpose. Further, Section 19 PMLA mandates that the Authorized Officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence under the PMLA. In this connection, Form III under Rule 6 of the Prevention of Money Laundering (the Forms and the Manner of Forwarding a Copy of Order of Arrest Page No.# 8/16 of a Person Along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005, was also taken note of. The Apex Court, therefore, held that there was no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception and particularly, so as to avoid any conspiracy as to whether such grounds are connected to the arrested person or not. [12.] The case of Pankaj Bansal (supra) was also relied upon the Vihaan Kumar Vs. State of Haryana & Anr., (2025) 5 SCC 799, which was also a case under the PMLA. The findings and conclusions of the Apex Court may be gainfully abstracted here-in-under for ready perusal:- “23. In the present case, the first respondent relied upon an entry in the case diary allegedly made at 6.10 p.m. on 10-6-2024, which records that the appellant was arrested after informing him of the grounds of arrest. For the reasons which will follow hereafter, we are rejecting the argument made by the first respondent. If the police want to prove communication of the grounds of arrest only based on a diary entry, it is necessary to incorporate those grounds of arrest in the diary entry or any other document. The grounds of arrest must exist before the same are informed. Therefore, in a given case, even assuming that the case of the police regarding requirements of Article 22(1) of the Constitution is to be accepted based on an entry in the case diary, there must be a contemporaneous record, which records what the grounds of arrest were. When an arrestee pleads before a court that grounds of arrest were not Page No.# 9/16 communicated, the burden to prove the compliance of Article 22(1) is on the police. 24. An argument was sought to be canvassed that in view of sub-section (1) of Section 50 CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which a person is arrested to him. The “other grounds for such arrest” referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS. 25. 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 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. Conclusions 26. Therefore, we conclude: 26.1. The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); Page No.# 10/16 26.2. The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; 26.3. When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1); 26.4. Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge-sheet and trial. But, at the same time, filing of charge-sheet will not validate a breach of constitutional mandate under Article 22(1): 26.5. 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) and other mandatory safeguards has been made; and 26.6. 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 Page No.# 11/16 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.” [13.] From the above abstracted, it may be seen that according to the Apex Court non-compliance of the Article 22(1) of the Constitution will be a violation of the fundamental rights of the accused guaranteed by the said Article and also violation of personal liberty guaranteed under Article 21 of the Constitution. Further, even if statutory restrictions are there for granting of bail, the same will not affect the power of the Court to grant bail when violation of Article 21 and Article 22(1) of the Constitution is established. [14.] The case of Pankaj Bansal (supra) was also relied upon by the Apex Court in a subsequent Judgment rendered in Prabir Purkayastha Vs. State (NCT of Delhi), (2024) 8 SCC 254, which was a case regarding the provision of arrest under the Unlawful Activities Prevention Act, 1967 (UAPA). The Apex Court, under the given facts and circumstances of the case held that upon a careful perusal of Section 19 (1) PMLA and Section 43-B(1) UAPA, there is no significance difference in the language employed, which can persuade the Court to take a view that the interpretation of the phrase “inform him of the grounds for such arrest" made by the Apex Court in Pankaj Bansal(supra) should not be applied to an accused arrested under the provisions of the UAPA. Page No.# 12/16 [15.] The Apex Court also held that there is a significant difference in the phrase “reasons for arrest” and “grounds of arrest”. The "reasons for arrest” as indicated in the arrest memo are purely formal parameters and for preventing the accused person from committing any further offence, for proper investigation of the offence, for prevention of the arrested accused person from causing any disappearance or tampering with the evidence etc. The “grounds of arrest”, on the other hand will require to contain all such details in the 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. Therefore, the "grounds of arrest" would be personal to the accused and cannot be equated with the "reasons of arrest" which are general in nature. Paragraph Nos. 26 to 30 of the said judgment, which are relevant for consideration of the present case may be abstracted hereunder for ready perusal:- “26. From a holistic reading of various judgments pertaining to the law of preventive detention including the Constitution Bench decision of this Court in Harikisan, wherein, the provisions of Article 22(5) of the Constitution of India have been interpreted, we find that it has been the consistent view of this Court that the Page No.# 13/16 grounds on which the liberty of a citizen is curtailed, must be communicated in writing so as to enable him to seek remedial measures against the deprivation of liberty. 27. Thus, there is no hesitation in the mind of this Court that the submission of the learned ASG that in a case of preventive detention, the grounds of detention need not be provided to a detenu in writing is ex facie untenable in the eye of the law. 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 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 Articles 22(1) and 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. 30. Furthermore, the provisions of Article 22(1) have already been interpreted Page No.# 14/16 by this Court in Pankaj Bansal laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of the learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the appellant-accused is noted to be rejected.” [16.] From above abstract, it may be seen that the Apex Court, thus, held that the grounds on which the liberty of a person is being deprived must be communicated in writing so as to enable him to seek remedial measures. The Apex Court in Kanishk Sinha & Anr. Vs. The State of West Bengal & Anr., 2025 LiveLaw SC 259 in the given facts of that case held that a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation. Whereas, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. [17.] Thus, upon an overall consideration of the law laid down by the Apex Court and upon perusing and appreciating the materials available on record, it only appears that the applicant had not been informed the grounds for his arrest and he is also in jail for the last two and a half years. Accordingly, this Page No.# 15/16 Court has no option but to allow the instant bail application. The applicant be released on bail upon furnishing a bail bond of Rs.50,000/- (Rupees Fifty Thousand) with two (2) local sureties of the like amount to the satisfaction of the learned Trial Court Judge. The bail is granted subject to the condition that the applicant shall not leave the jurisdiction of the learned Trial Court without obtaining prior permission of the learned Trial Court Judge. If such permission is to be granted by the learned Trial Court Judge, the same shall be subject to the applicant furnishing an undertaking that he will appear before the Court as and when asked. The applicant shall also furnish his complete temporary and permanent residential address to the Court. [18.] In the light of the decisions rendered by the Apex Court on the subject, this Court deems it proper and necessary to issue the following directives:- (1) It will be incumbent upon the part of arresting authority to provide the arrested person the grounds of arrest in writing, in terms of the Article 22(1) of the Constitution of India. (2) The grounds of arrest shall also specifically provide that the arrested person has been explained in the language that he understands as to why he has been arrested and that he has understood the same by subscribing his signature or thumb impression. Page No.# 16/16 (3) The arrested person shall also be informed that he has the right to consult and to be defended by the legal practitioner of his choice. (4) In case of failure on the part of the arresting authority to inform the arrested person in writing about the grounds of his/her arrest as provided hereinabove, the concerned Controlling Authority will be at liberty to draw departmental proceedings against the said officer. [19.] The Registry shall send a copy of this Order to the Director General of Police, Mizoram for information and necessary action. The said authority shall ensure circulation of the above instructions to all the Superintendents of Police of all the districts and to all the Officers-in-Charge of the Police Stations for its compliance. JUDGE Comparing Assistant