Page No.# 1/16 GAHC030005932025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./39/2025 Sh. Basit Uddin S/o Nizam Uddin, R/o Kabaribon, Patharkandi, Karimganj District, Assam VERSUS The State of Mizoram and Anr. Aizawl Advocate for the Petitioner : Mr C Lalfakzuala Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HONOURABLE MR. JUSTICE NELSON SAILO ORDER 25.09.2025 Heard Mr. C. Lalfakzuala, learned counsel for the applicant and Ms. Vanneihsiami, learned Additional Public Prosecutor, Mizoram. [2.] On 29.08.2025, this Court while issuing notice passed the following Orders: Page No.# 2/16 “Heard Ms. Sarah Remruatfeli, learned counsel for the applicant, who submits that by filing this application under Section 37 of the ND&PS Act read with Section 483 of the BNSS, the applicant seeks grant of bail. The learned counsel submits that the applicant was arrested on 23.01.2023 in connection with alleged recovery/possession of 1458 grams of suspected heroin and pursuant to which, a case was registered namely SR(P) No.130/2023 under Section 21(C)/25/29 of the ND&PS Act. Learned counsel submits that the applicant submitted four bail applications before the Trial Court, which were all rejected. Likewise, the applicant also submitted two bail applications before this Court and they were also rejected. Learned counsel submits that the applicant is now before this Court seeking bail on the ground that Article 22(1) of the Constitution of India has been violated. In other words, the grounds of arrest have not been informed to the petitioner. In support of her submission, the learned counsel relies upon the case of Vihaan Kumar –vs- State of Haryana and another, reported in (2025) 5 SCC 816. In view of above, issue notice returnable by 10(ten) days. Ms. Vanneihsiami, learned Additional Public Prosecutor, Mizoram accepts notice on behalf of the State. Applicant to serve requisite extra copies of the bail application to Ms. Vanneihsiami within three working days. List this matter after ten days on a date to be fixed by the Registry.” [3.] As abstracted above, the applicant had earlier approached the Trial Court Page No.# 3/16 on four (4) occasions as well as this Court on two (2) occasions with his bail applications and the Court after examining the Bail Applications and the submissions made by the counsels appearing for the applicant had rejected the Bail Applications. The applicant is yet again before this Court with the instant Bail Application contending inter-alia that the ground of arrest was not communicated to the applicant as mandated by Article 22 (1) of the Constitution of India. That such communication in fact should be in writing as held by the Apex Court in Vihaan Kumar (supra). [4.] The learned counsel submits that the prosecution has examined nine (9) prosecution witnesses and the applicant has been examined under Section 313 Cr.P.C. The applicant on his part has two (2) different witnesses including himself. He submits that the co-accused persons have been examined as one of the defense witness and the applicant is to be examined on 16.09.2025. He submits that although the Trial is at the verge of completion but since the mandate of Article 22 (1) of the Constitution has not been complied with, the applicant should be released on bail. To support his submissions, the learned counsel has further relied upon the following authorities:- (i) Pankaj Bansal Vs. Union of India & Ors., (2024) 7 SCC 576, (ii) Prabir Purkayastha Vs. State (NCT of Delhi), (2024) 8 SCC 254 and Page No.# 4/16 (iii) Kanishk Sinha &Anr. Vs. The State of West Bengal & Anr., 2025 LiveLaw (SC) 259. [5.] Per Contra, Ms. Vanneihsiami, learned Additional Public Prosecutor, Mizoram, submits that from a perusal of the arrest/Court surrender form at Serial No. 8, it is clear that the applicant has been informed about the grounds of his arrest and his legal rights. He was accordingly taken into custody on 23.01.2023. She, further submits that more than six (6) bail applications have already been submitted by the applicant which only goes to show that the applicant is very much aware as to why he has been arrested. She also submits that Article 22 (1) of the Constitution of India is only a safeguard and is not a ticket to automatic release of bail. She, therefore submits that the bail application has no merit and the same should be rejected. [6.] Mr. C. Lalfakzuala, learned counsel for the applicant in response to the submissions made by the learned Additional Public Prosecutor submits that the entry made in the arrest/Court surrender form is only in the form of a format and by no means can be construed as compliance of Article 22(1) of the Constitution. He submits that in fact proper communication about grounds of arrest in writing is a must, as per the decision rendered by this Court and that the burden of proof that such communication has been made to the accused Page No.# 5/16 person is on the prosecution He, thus submits that the applicant may be released on bail. [7.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. Brief facts of the case has already been provided in the beginning part of the Order and the same is not being repeated for brevity. 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 of Article 22(1) of the Constitution 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 be denied the right to consult, and to be defended by, a legal practitioner of his choice." [8.] In the above context, let us peruse the authorities relied upon by the learned counsel for the applicant, 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 Page No.# 6/16 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 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. [9.] 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 Page No.# 7/16 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 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. [10.] The case of Pankaj Bansal (supra) was also relied upon the Vihaan Kumar Page No.# 8/16 (supra) which was also a case under the PMLA. The findings and conclusions of the Apex Court may gainfully be 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 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 Page No.# 9/16 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); 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); Page No.# 10/16 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 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.” [11.] 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 Page No.# 11/16 not affect the power of the Court to grant bail when violation of Article 21 and Article 22(1) of the Constitution is established. [12.] The case of Pankaj Bansal (supra) was also relied upon by the Apex Court in a subsequent Judgment rendered in Prabir Purkayastha (supra), 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. [13.] 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 Page No.# 12/16 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 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 Page No.# 13/16 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 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.” [14.] 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 Page No.# 14/16 communicated in writing so as to enable him to seek remedial measures. The Apex Court in Kanishk Sinha & Anr. (supra) 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. [15.] 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 the applicant is also in jail for the last two years and eight months now. Accordingly, this 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 Page No.# 15/16 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 Trial Court. Bail is further granted subject to the applicant producing a certificate from the Officer- in-Charge of the Police Station concerned, where his original residence is, certifying that he is a permanent resident of that place. [16.] In the light of the decisions rendered by the Apex Court, this Court deems it proper 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. (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 Page No.# 16/16 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. [17.] 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