Page No.# 1/11 GAHC010032772025 2025:GAU-AS:5192 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./472/2025 BASUDEV DAS AND ANR S/O- ANIL DAS, RESIDENT OF VILLAGE GARIGAON BIDYANAGAR PS JALUKBARI DIST KAMRUP (METRO), ASSAM 2: RAHUL DAS S/O- LATE KHAGEN DAS VILLAGE BORIHAT P.S. MIRZA DISTRICT. KAMRUP (RURAL) ASSA VERSUS THE STATE OF ASSAM REP BY the PP, ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MR. S DUTTA,MS S MOCHAHARI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 29.04.2025 Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, for the State respondent. 2. This is an application filed under Section 483 of the Bharatiya Page No.# 2/11 Nagarik Suraksha Sanhita, 2023 seeking regular bail to the petitioners i.e. Basudev Das and Rahul Das, who have been arrested on 06.10.2023 in connection with Bazaricherra P.S. Case No.204/2023 dated 07.10.2023 registered under Section 22(c)/25/29 of the NDPS Act, 1985 corresponding to Special (NDPS) Case No.131 of 2023 pending before the Court of Special Judge, Karimganj (now Shibhumi) 3. The brief facts of the case is that on 06.10.2023 at about 4.30 p.m., the informant namely S.I Pranab Mili lodged an F.I.R at the Bazaricherra P.S. to effect that on 06/10/2023 at around 04.00 am, one 6 (Six) wheeler brick red colour (front side) container body truck bearing Registration No-AS 01MC 8580 was arriving at the naka check point, which was coming from Lowairpoa side for Tripura was signalled to be stopped by the naka party. As per routine of naka checking duty the truck was parked in a safe place and started thorough checking of the truck. The truck was driven by a person, Viz. Basudeb Das-32 yrs, S/O Anil Das and one helper, Rahul Das, aged about- 18 years, S/O- Lt. Khogen Das. During checking, some cartons and bags were unloaded from the container of the truck and accordingly after unloading a huge quantity of Codeine Phosphate Cough Syrups which were packed/wrapped with different types of clothes. Accordingly the information was reported by the SI to the officer-in-charge, Bazaricherra P.S and other superior officers. As there was urgency to conduct search and for detention as the drugs were likely to be transported to some unknown place in no time, the authorization from a Gazetted Officer as per Section 42 of the NDPS Act could not be Page No.# 3/11 obtained immediately. Then the SI served two separate notices U/S 50 of the NDPS Act and started to search for narcotics substance in the presence of independent witnesses. The whole search process was carried out in accordance with 50(5) of the NDPS Act and 100 CrPC. After completion of search of the vehicle and below mentioned articles were recovered and seized. i). One 6 wheeler container body truck, bearing Reg No. AS 01MC 8580. ii). Total 9000 nos of Triprolidine Hydrochloride and Codeine Phosphate Phensedyl cough Syrup packed in 31 nos. of bags. Weighing about 1089 KGs. iii). One Registration Certificate of the vehicle in the name of one Mrs. Rajesh, R/O Beltola, college road, Bongaon, Beltola, Guwahati. iv). One black colour oppo phone belonging to Basudeb Das. bottles codeine Phosphate Phensedyl cough syrup. After completion of all the formalities, the naka team departed from the P.O. at around 4:30 pm along with the inventory and other seized items and the petitioners. Accordingly the SI, Pranab Mili requested the OC, Bazaricherra P.S, to register a case against the petitioners. Thereafter, on receipt of the said complaint, the Officer-in Charge of the Bazaricherra P.S. registered the case vide Bazaricherra P.S. Case No. 204/2023 under Sections 22 (C)/25/29 of the NDPS Act, 1985. Accordingly, the petitioners were arrested. Hence, the instant bail application has been filed. Page No.# 4/11 4. Mr. Mr. S. Dutta, learned counsel for the petitioners submits that the arresting authority while arresting the petitioners have not informed the grounds of arrests to them and as such, the fundamental and constitutional rights guaranteed to them under Article 22(1) of the Constitution of India have been totally infringed by the arresting authority. He accordingly submits that the petitioners are entitled to be released forthwith. 5. Per contra, Mr. B. Sarma, learned Additional Public Prosecutor, Assam fairly draws the attention of the Court from the case records that the Notice issued under Section 50 of Cr.P.C to the petitioners as well as the Memo of Arrests do not indicate that the grounds of such arrests have been informed to the petitioners at the time of his arrest. 6. I have considered the submissions advanced by the learned Counsels for both the parties and also perused the material available on record. 7. The primary ground urged in this bail application is as regard non-compliance of the constitutional and fundamental right of the petitioners guaranteed under Article 21 and 22(1) of the Constitution of India. 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 Page No.# 5/11 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. Perusal of the aforesaid provision, it is apparent that an arrestee has a constitutional and fundamental right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest. 9. In the present case apt to refer to the notices issued to the petitioners under Section 50 of the Cr.P.C., which reads as hereunder: - “NOTICE U/S- 50 C.R.P.C. To, Shri Basudev Das, 32 years S/o- Anil Das Vill- Garigaon, Bidyanagar P/O- Police Station- Jalukbari, Dist Kamarup (M), Assam Ref:- BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. P.S. Case No.- 204/23. You are hereby inform that you are under arrest in connection with above noted case. The case is non bailable to police. Hence, you are/your relative not forwarded/forwarded before the Hon’ble Judicial Court in connection with the case. Signature of the Arrestee I/O of the Case NOTICE Page No.# 6/11 U/S- 50 C.R.P.C. To, Shri Rahul Das, 18 years S/o- Lt. Khagen Das. Vill- Borihat P/O- Police Station- Mirza, Dist- Kamrup Rural, Assam Ref:- BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. P.S. Case No.- 204/23. You are hereby inform that you are under arrest in connection with above noted case. The case is non bailable to police. Hence, you are/your relative not forwarded/forwarded before the Hon’ble Judicial Court in connection with the case. Signature of the Arrestee I/O of the Case” 10. Perusal of the aforesaid notice indicates that except the name of the petitioners and case reference, no other information as regards the offence or the grounds of arrests are intimated to the petitioners in this notice. 11. Apt also to refer to the memo of arrests which reads as hereunder: - “ARREST MEMO (1) Name and particulars of person arrested: Shri Basudev Das, 32 years S/o- Anil Das Vill- Garigaon, Bidyanagar P/O- Page No.# 7/11 Police Station- Jalukbari, Dist Kamarup (M), Assam 2. Concerning P.S Case No./ GDE No. reference of Arrest:- BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. 3. Place of Arrest:- Bazaricharra P.S. 4. Date and Time of Arrest: 07/10/2023 at 10.30 AM. 5. Injuries present at time of Arrest:- As per inspection memo. (If yes, make Inspection Memo on reverse) 6. Signature and Name of Relative/ Witness to Arrest (Atleast one):- WT Message sent to the O/C Jalukbari P.S. to inform his family members…. 7. Signature of Arrested person:- 8. Signature & Full Name of Arresting- Officer :- ARREST MEMO (1) Name and particulars of person arrested: Shri Rahul Das, 18 years S/o- Lt. Khagen Das. Vill- Borihat P/O- Police Station- Mirza, Dist- Kamrup Rural, Assam 2. Concerning P.S Case No./ GDE No. reference of Arrest:- BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. 3. Place of Arrest:- Bazaricharra P.S. 4. Date and Time of Arrest: 07/10/2023 at 10.30 AM. 5. Injuries present at time of Arrest:- As per inspection memo. (If yes, make Inspection Memo on reverse) 6. Signature and Name of Relative/ Witness to Arrest (Atleast one):- WT Message sent to the O/C Page No.# 8/11 Jalukbari P.S. to inform his family members…. 7. Signature of Arrested person:- 8. Signature & Full Name of Arresting- Officer :- “ 12. Perusal of the memo of arrest also indicates that except the name and particulars of the petitioners, date and time of arrest and case reference, no other information as regards the offence or grounds of arrests are mentioned. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioners: - “INSPECTION MEMO Writ Petition (Criminal) Nos 539 of 1985 and 592 of 1997 1. Name of P.S.: Bazaricherra P.S. 2. Case No. BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. 3. Name and address of accused: Shri Basudev Das, 32 years S/o- Anil Das Vill- Garigaon, Bidyanagar P/O- Police Station- Jalukbari, Dist Kamarup (M), Assam 4. Wound in body found at the time of examination:- No injury is seen Covid-19 (Negative) 5. Name and designation of Medical officer on duty (Seal):- Dr. Afjal Hussain, M.O. MBBS. 6. Name and Rank of Officer who arrest:- S.I. Dipok Kr. Singha Page No.# 9/11 7. Signature of arrestee:- 8. Signature of Police Officer who escort the accused:- INSPECTION MEMO Writ Petition (Criminal) Nos 539 of 1985 and 592 of 1997 1. Name of P.S.: Bazaricherra P.S. 2. Case No. BCR P.S. Case No- 204/23 U/s- 22(C)/25/29 NDPS Act. 3. Name and address of accused: Shri Rahul Das, 18 years S/o- Lt. Khagen Das. Vill- Borihat P/O- Police Station- Mirza, Dist- Kamrup Rural, Assam 4. Wound in body found at the time of examination:- No injury is seen Covid-19 (Negative) 5. Name and designation of Medical officer on duty (Seal):- Dr. Afjal Hussain, M.O. MBBS. 6. Name and Rank of Officer who arrest:- S.I. Dipok Kr. Singha 7. Signature of arrestee:- 8. Signature of Police Officer who escort the accused:” 13. It appears from the materials placed before this Court that there are no materials available in the case record to indicate that the grounds of arrest have been informed to the petitioners at the time of their arrest. Moreover, the case record does not indicate any contemporaneous record indicating that the grounds of arrest were Page No.# 10/11 informed to the petitioners. 14. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will be a violation of the constitutional and fundamental rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established (Refer:- Vihaan Kumar Vs State of Haryana and Anr., reported in 2025 SCConline SC 269). In the present case it is absolutely clear that the grounds of arrest were not informed to the petitioners at the time of their arrest, hence, the arrests of the petitioners are totally illegal. As such, the arrests of the petitioner stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioner. Therefore, further detention of the petitioners in the custody is totally unjustified. 15. In view of the aforesaid, this Court is of the considered opinion that the petitioners are liable to be released forthwith. Accordingly, it is provided that on furnishing of a bail bond of Rs. 50,000/-(rupees fifty thousand) each, with two sureties of like amount each, provided that one surety has to be a Government Servant, to the satisfaction of the learned Special Judge (NDPS), Page No.# 11/11 Sribhumi (Karimganj) under the conditions that the petitioner: (a) That the accused/petitioners shall regularly appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; (b) That the accused/petitioners 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; and (c) That the accused/petitioners shall refrain from committing any offences similar to the one of which they are accused; 16. In terms of the above, the bail application stands disposed of. JUDGE Comparing Assistant