Page No.# 1/12 GAHC010016982025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./255/2025 AJIR ALI @ BUDU S/O MOSLIM ALI R/O VILL-ADHIYAPARA P.S. HAJO DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 27.02.2025 1. Heard Mr. B.K. Mahajan, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor appearing Page No.# 2/12 for the State of Assam. 2. This application under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner namely, Ajir Ali @ Budu, who has been detained behind the bars since 09.10.2024 in connection with Hazo P. S Case No. 383/2024 under Section 22(c)/25 of the NDPS Act, 1985. 3. The gist of the accusation in this case is that on 08.10.2024, one Ms. Gitimani Gogoi, SI of Police, had lodged an FIR before the Officer-In- Charge of Hajo Police Station, inter-alia, alleging that on receipt of an information through reliable sources on that day regarding a vehicle carrying suspected contraband coming from Guwahati to Hajo, a police team was constituted, and a naka checking was arranged near Ganesh Mandir at Agaithuri. 4. During naka checking operation, at about 4.30 p.m., one vehicle bearing Registration No. AS-01-DZ-6937 was intercepted. However, the said vehicle, instead of stopping, tried to flee away, which was chased by the police, and ultimately, the vehicle could be stopped at Borka Chowk. The driver of the said vehicle (the present petitioner) was apprehended, and the vehicle was searched. 5. During search of the vehicle, a total of 05 (five) numbers of cartons were recovered from the dickey of the vehicle, inside which, trichloroethane hydrochloride and codeine phosphate syrup “NEWREX-T” were found therefrom. In 04 (four) of the cartons, total 144 number of cough syrup bottle of 100 ml each were there, thereby, total number of cough syrup bottle found in 04 (four) cartons were 576, whereas in one Page No.# 3/12 other carton, total 100 numbers of cough syrup bottle were found. 6. Mr. B. K. Mahajan, the learned counsel for the petitioner has submitted that the petitioner is before this Court praying for his bail mainly on the grounds of violation of his constitutional rights under Article 22 (1) of the Constitution of India as well as statutory right under Section 47 of the BNSS, 2023 as well as Section 52 of the NDPS Act, 1985. 7. The learned counsel for the petitioner has submitted that when the petitioner was arrested, he was served with the notice under Section 47 of the BNSS, 2023. However, no grounds of arrest were mentioned in the said notice. 8. It is submitted by the learned counsel for the petitioner that apart from the case number i.e., Hajo P. S Case No. 383/2024 and the penal provision that is under Section 22(c)/25 of the NDPS Act, 1985, no other information was mentioned in the said notice. 9. The learned counsel for the petitioner has submitted that even in the arrest memo and inspection memo on which the signatures of the petitioner were obtained by the Investigating Officer, no grounds of arrest were stated. 10. The learned counsel for the petitioner has submitted that not informing the grounds of arrest to the petitioner as soon as he was arrested would vitiate his arrest as it would be against the constitutional mandate contained in Article 22 (1) of the Constitution of India. He submits that at the time of his arrest, the petitioner has to be informed about all basic facts which necessitated the arrest of the accused. He submits that it is the mandate of the law that the full particulars of the offence which is Page No.# 4/12 alleged against the petitioner has to be informed to him at the time of his arrest. Otherwise, it would be against the mandate of the Constitution as well as statutory provisions and which would vitiate the arrest itself. 11. In support of his submission, the learned counsel for the petitioner has cited the following rulings of the Apex Court. i. Vihan Kumar Vs. State of Haryana and Another reported in 2025 SCC Online SC 269. ii. Prabir Purkayastha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254. 12. The learned counsel for the petitioner has also submitted that even if the statutory embargo under Section 37 of the NDPS Act, 1985 appears to be applicable in this case, however, when there is a violation of constitutional provision contained in Article 21 and 22 of the Constitution of India, the statutory restrictions would not affect the power of the Court to grant bail in such circumstances. 13. On the other hand, Mr. R. J. Baruah, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He further submits that as the contraband was recovered from the vehicle which was driven by the present petitioner, he was aware about the basic facts for which he has been arrested and therefore, even if the notice under Section 47 of the BNSS, 2023 does not specifically mentions all the details, it would not vitiate the arrest and he would not be entitled to bail on that ground. 14. He further submits that there is an endorsement in the case diary that Page No.# 5/12 the Investigating Officer has orally informed about the grounds of arrest to the petitioner when he was arrested. He therefore, pleads for dismissing the bail application of the present petitioner. 15. I have considered the submissions made by learned counsel for both the sides and have perused the materials available on record carefully. 16. It appears from record that on the day of arrest of the present petitioner, i.e., on 09.10.2024, the authority, i.e., SI of Police, Ms. Gitimani Gogoi, had served a notice under Section 47 of BNSS, 2023 to the petitioner and had obtained his signatures thereon. On careful perusal of the aforesaid notice, it appears that it is stated therein that the notice refers to the Hajo P. S Case No. 383/2024 under Section 22(c)/25 of the NDPS Act, 1985. The notice further states as follows: “You are hereby informed that you are under arrest in connection with above reference case as non-bailable to police. You are forwarded to the Hon’ble Court of Judicial Magistrate First Class. You may submit petition before Hon’ble Court for your bail.” 17. No other information was furnished in the said notice which was served upon the petitioner. 18. It also appears that the arrest memo on which the signature of petitioners were obtained also contains only the reference of the case i.e., Hazo P. S Case No. 383/2024 and the penal provisions that is under Section 22(c)/25 of the NDPS Act, 1985. The circumstances of arrest or grounds of arrest are not mentioned therein. Page No.# 6/12 19. Article 22 (1) of the Constitution of India provides as follows. “(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.” 20. Section 47 of the BNSS, 2023 provides as follows: “47. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.” 21. Similarly, Section 52 (1) of the NDPS Act, 1985 provides as follows: “52 (1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.” 22. Section 51 of the NDPS Act, 1985 provides as follows. 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.— The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Page No.# 7/12 23. A bare perusal of above constitutional as well as statutory provision would reveal that informing an arrestee about the grounds of his arrest is not only his statutory rights under various statutes, but also a constitutional right. 24. The Apex Court of India has observed in the case of Vihan Kumar Vs. State of Haryana and Another (Supra) as follows: “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. Page No.# 8/12 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.” 25. The Apex Court has also observed in the case of Prabir Purkayastha Vs. State (N), City of Delhi (supra) as follows:- “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 committed 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 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 tampering 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” Page No.# 9/12 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.” 26. In the case of Vihan Kumar Vs. State of Haryana and Another (Supra), the Apex Court has also observed as follows:- “21. Therefore, we conclude: a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); b) 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; c) 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); d) 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 Page No.# 10/12 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 chargesheet will not validate a breach of constitutional mandate under Article 22(1); e) 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 f) 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.” 27. In the instant case also, as discussed herein above, the arrest memo as well as the notice served upon the arrestee under Section 47 of the BNSS, 2023 nowhere mentions the grounds of arrest, it only mentions about the case number in which the arrest has been made and the penal provisions which the case involves. It does not mention about full particulars of the offence and all basic facts on which the petitioner was arrested. Neither it mentions about the details of grounds which necessitated the arrest of the petitioner. 28. Bare perusal of the notice served upon the petitioner under Section 47 Page No.# 11/12 of the BNSS, 2023 as well as the arrest memo on which his signatures were obtained would show that there is a clear violation of mandate of Article 22 (1) of the Constitution of India in this case and therefore, in spite of the embargo contained in Section 37 of the NDPS Act, 1985, this Court is of considered opinion that due to violation of the constitutional mandate contained under Article 22 (1) of the Constitution of India, the arrest of the petitioner is vitiated and that is sufficient to grant him bail in this case in spite of the embargo of Section 37 of the NDPS Act, 1985. 29. In view of the above, the petitioner, namely, Ajir Ali @ Budu, is allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Sessions Judge. Kamrup, Amingaon with the following conditions: i. That the petitioner shall cooperate in the investigation of Hajo P. S Case No. 383/2024; ii. That the petitioner shall appear before the IO as and when so required by him for the sake of fair completion of the investigation; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the IO; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details before the Court of learned Sessions Judge, Kamrup, Amingaon; v. That the petitioner shall not leave the jurisdiction of the Court of learned Sessions Judge, Kamrup, Amingaon without prior permission of the Court of learned Sessions Judge, Kamrup, Amingaon and when such leave is granted by the Court of learned Page No.# 12/12 Sessions Judge, Kamrup, Amingaon, the petitioner shall submit his leave address and contact details during such leave before the Court of learned Sessions Judge, Kamrup, Amingaon; and vi. That the petitioner shall not commit any offence while on bail. 30. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant