Page No.# 1/8 GAHC010040722025 2025:GAU-AS:5193 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./590/2025 HAFIZUR RAHMAN S/O LATE ZOHIRUL HOQUE R.O VILL- KATHALBARI P.S. MANKACHAR DIST. SOUTH SALMARA, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M I HUSSAIN, R KHA,N. UDDIN,MS. P AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 29.04.2025 Heard Mr. M. I. Hussain, learned counsel for the petitioner. Also heard Mr. K. K. Parashar, learned Additional Public Prosecutor, for the State respondent. Page No.# 2/8 2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail to the petitioner i.e. Hafizur Rahman, who has been arrested on 19.01.2024 in connection with Jogighopa P.S. case No.13/2024 registered under Section 22(c) of the NDPS Act, 1985. 3. The brief facts of the case is that one SI(P) namely Prabhulal Barhma of Jogighopa Police Station lodged an FIR alleging inter alia that on 19.01.2024 at around 12:28 AM the informant received an information from a reliable source to the effect that a Vehicle bearing No. AS-01-RC-2908 was intercepted by the local public of village Kabaitary. Accordingly, under the instruction of O/C, Jogighopa PS, the informant proceeded to the place of occurrence and found that the said vehicle loaded with vegetable came from Dinhata (west Bengal) side to Krishnai. The vehicle was dully searched and recovered 1770 Nos. of 100 ml bottles of Phensedyl Cough syrup. Thereafter, seizure was made in presence of independent witness and packed sealed on the spot as per seizure list. After receiving the aforesaid FIR the Officer-in-Charge of Jogighopa Police Station registered a case vide Jogighopa P.S. case No. 13/2024 under section 22(c) of NDPS Act, 1985. Thereafter, the petitioner was arrested and was forwarded to the Court of ld. Special Magistrate, North Salmara Abhayapuri, Bongaigaon on 20.01.2024. Hence, the instant bail application has been filed. 4. Mr. M. I. Hussain, learned counsel for the petitioner submits that the arresting authority while arresting the petitioner has not informed Page No.# 3/8 the grounds of arrest to him and as such, the fundamental and constitutional rights 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 petitioner is entitled to be released forthwith. 5. Per contra, Mr. K. K. Parashar, 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 petitioner as well as the Memo of Arrest does not indicate that the grounds of such arrest has been informed to the petitioner 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 petitioner 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 custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to Page No.# 4/8 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 notice issued to the petitioner under Section 50 of the Cr.P.C., which reads as hereunder: - “NOTICE U/S- 50 C.R.P.C. Name : Hafizur Rahman (32 years) S/o : S/o- Lt. Zohirul Hoque Village : Kathalbari PS : Mankachar Dist : South Salmara (Assam) Reference JGP C/No.13/2024 u/s. 22(c) of NDPS Act, 1985. Your are hereby inform that you are under arrest in connection with above reference case and as is non-bailable to police you will be produced before the Hon’ble Court within 24 (twenty four) hours. You may submit petition before the Hon’ble Court for your bail. This is for kind information. Signature of arrestee Signature of I.O.” 10. Perusal of the aforesaid notice indicates that except the name of the petitioner and case reference, no other information as regards the offence or the grounds of arrest is intimated to the petitioner in this notice. Page No.# 5/8 11. Apt also to refer to the memo of arrest which reads as hereunder: - “ARREST MEMO 1. Name and particulars of person arrested:- Hafizur Rahman (32 years) S/o Lt. Zohirul Hoque Vill. Kathalbari P.S. Mankachar Dist. South Salmara (Assam) M/no- 9387567977 2. Circumstances/P.S. Case No./GDE No. of arrest: Jogighopa P.S. Case No. 13/24 u/s- 22 (c) of NDPS Act. 3. Place of Arrests: Jogighopa PS 4. Date and Time Arrest : On 19/01/024 at 9.28 PM 5. Injuries present at time of Arrest: As per Inspection Memo 6. Signature and name of Relative/Witness Of Arrest:- 7. Signature of Arrested persons : 8. Signature & Full name of Arresting Office (Also and any “toka” if reqd.)” 12. Perusal of the memo of arrest also indicates that except the name and particulars of the petitioner, date and time of arrest and case reference, no other information as regards the offence or grounds of arrest is 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 petitioner: - “INSPECTION MEMO Writ Petition (Criminal) Nos. 539 of 1986 and 592 of 1997 1. Date: 20/01/2024 Page No.# 6/8 2. Case Ref:- Jogighopa PS Case No. 13/24 U/s 22(C) of NDPS Act, 1985. 3. Name and Address of Accused: Hafizur Rahman (32 years) S/o Lt. Zohirul Hoque Vill. Kathalbari P.S. Mankachar Dist. South Salmara (Assam) M/no- 9387567977 4. Wound in Body found at the Time of Examine:- No external injury noted at time of examination. 5. Name and Designation M.O. in duty: Dr. Afren Ahad, MO MBBS 6. Signature of Arrestee:- 7. Name of Police Officer who escort the Arrest of accused:- LNK/57 Govinda Ch. Ray. 8. Signature in rank of Officer effecting the arrest:- ” 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 petitioner at the time of his arrest. Moreover, the case record does not indicate any contemporaneous record indicating that the grounds of arrest were informed to the accused. 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 Page No.# 7/8 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions o not affect the power of the Court to grant bail. In fact, it is the dut of the Court to forthwith order the release of the accused when a violat on 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 was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest 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 petitioner in the custody is totally unjustified. 15. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, it is provided that on furnishing of 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 Special Judge, North Salmara, Abhayapuri under the conditions that the petitioner: - (a) 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; (b) That the accused/petitioner shall not directly or indirectly make any inducement, threat or promise to any person Page No.# 8/8 acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court; and (c) That the accused/petitioner shall refrain from committing any offences similar to the one of which he is accused. 16. In terms of the above, the bail application stands disposed of. JUDGE Comparing Assistant