Page No.# 1/7 GAHC010040702025 2025:GAU-AS:4258 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./606/2025 DIPANJAN BAIDYA S/O BIDHAN BAIDYA R/O ULUBARI,CHAUTARA NAITARA P.S. DHOOPDHARA, DIST.GOALPARA, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,S K DAS,J SINGPHO Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 07.04.2025 Heard Mr. M. Biswas, learned counsel for the accused petitioner and Mr. R.R Kaushik, learned Additional Public Prosecutor for the State. 2. By filing this application U/S 483 of the BNSS, the petitioner has prayed for bail in connection with Special (NDPS) Case No.20/2023 (corresponding to Page No.# 2/7 Bazarichera P.S. Case No.62/2023) U/S 22 (C)/ 29 of the NDPS Act pending in the Court of learned Sessions Judge cum Special Judge, Sribhumi(Karimganj). 3. The prosecution case is brief is that on 09.03.2023, an FIR has been lodged before the O/C Bazarichera P.S. stating inter alia that a naka checking was conducted near Chaubari watch point over NH-08 at around 12:30 PM and during naka checking a white coloured ten wheeler vehicle bearing No. MH-40- BL-7948 was intercepted and being searched 357 Kgs of Codeine based cough syruyp was recovered from the locked container of the said vehicle. The vehicle was driving by one Amir Ali and co-driver was Dilbar Hussain. Accordingly, the said contraband item was seized and both the persons were arrested. 4. It was urged by learned counsel for the petitioner that the petitioner was arrested subsequently on the basis of the statement made U/S 67 of the NDPS Act. No contraband item was recovered from the possession of the petitioner. Hon’ble Apex Court in the case of Tufan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1 has observed that “a statement made U/S 67 of the NDPS Act is an inadmissible piece of evidence”. 5. It is further submitted that the accused petitioner is languishing in judicial custody for more than 2 years since his arrest on 14.03.2023. Out of 14 witnesses, no any witness is examined till date. It is trite law that prolonged incarceration as an undertrial and inordinate delay in trial infringes the fundamental right of an accused guaranteed under Article 21 of the Constitution of India. On that count the learned counsel for the petitioner has relied on the following case laws:- Page No.# 3/7 a. Satender Kumar Antil Vs. CBI, (2022) 10 SCC 51 b. Ravi Prakash Vs. State of Orissa, (2023) 0 (SC) 707 c. Dhiraj Kumar Shukla Vs. State of U.P, SLP (Crl) No.6690/2022 6. Another contention raised by learned counsel for the petitioner is that no grounds of arrest were communicated to the petitioner in the notice served upon him U/S 50 Cr.P.C. (Section 47 BNSS) and notice served to his representative U/S 50(A) Cr.P.C. (Section 48 BNSS) which are mandatory in nature. 7. By referring the judgment of Prabir Purkaystha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254, the learned counsel for the petitioner has pointed out that in the said case, Hon’ble Supreme Court has held that once the Apex Court has interpreted the provisions of the statute in context to the Constitutional Scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the Courts of the Country by virtue of Article 141 of the Constitution of India. 8. Placing reliance on another case law vide Vihaan Kumar Vs. State of Haryana and another (2025) SCC online 260 which held that the arrest of an accused is invalid under such circumstances when the grounds of arrest are not communicated to the accused person. 9. Accordingly, the learned counsel for the petitioner submits that as there are irregularities on the arrest of the accused petitioner as well as prolonged incarceration, the accused petitioner may be enlarged on bail. Page No.# 4/7 10. In response, learned Additional Public Prosecutor has opposed in granting bail to the petitioner by stating that this case relates to commercial quantity of Codeine based cough syrup as such Section 37 of the NDPS Act will come into play. However, learned Additional P.P. has admitted that as per documents available in the Trial Court record, the grounds of arrest have not been communicated to the petitioner in writing at the time of his arrest. 11. Having heard the learned counsel for the parties it reveals that the learned counsel for the petitioner has prayed for bail on two grounds i.e, prolonged incarceration and non-communication of the grounds of arrest to the petitioner. 12. I have perused the scanned copy of the Trial Court record. The record reveals that the accused was arrested on 14.03.2023 and the charge-sheet has been laid on 02.08.2023. Thereafter, charge was framed on 01.06.2024 and the case was fixed for recording evidences of the witnesses. But unfortunately till date no witness is examined by the Trial Court. The order sheet does not reflect that the Trial Court has taken any such initiative to examine the witness for early disposal of the case. 13. The scanned copy of the record also contains the arrest memo of Bazarichera P.S. Case No.62/2023 which reflects the date and time of arrest, place of arrest, particulars of the person arrested and in column no. 5 though grounds of arrest mentioned, however, it is written in connection BCR P.S. Case No.62/2023. It transpires that no specific grounds of arrest in writing has been communicated to the petitioner. 14. As per notice (grounds of arrest U/S 50 Cr.P.C.) though issued to the Page No.# 5/7 petitioner in connection with Bazarichera P.S. Case No. 62/2023 which is reproduced as follows:- “you are hereby informed in written that you are arrested in connection with above noted case as sufficient evidence have been found against you involving to the case. The offence charged on you is non-bailable one. So you are forwarded to Court custody on 14.03.2023 and the ground of arrest is communicated as per the provision of law. You may proceed to Hon’ble Court for your bail.” 15. From the aforesaid notice, though stated grounds of arrest have been communicated to the petitioner, however, it does not disclose any grounds of arrest being informed to the petitioner in connection with Bazarichera P.S. Case No.62/2023. 16. In case of Vihaan Kumar (Supra) wherein the Hon’ble Apex Court has referred the case of Pankaj Bansal (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra) and the Hon’ble Apex Court has held as follows- “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 per the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by Constitutional 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 in so far 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 grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as under Article 22(1) Page No.# 6/7 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 detention being rendered illegal, as the case may be.” 17. It is specifically mentioned in the case of Vihaan Kumar (Supra) that when a violation of Article 22(1) of the Constitution of India is established, it is duty of the Court to order the release of the accused and 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 do grant bail when the violations of Articles 21 and 22 of the Constitution is established. 18. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the ground of his arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in the arrest memo or the Section 50 notice issued to the petitioner that the grounds of arrest was being informed to the petitioner at the time of his arrest. Accordingly, the petitioner is entitled for bail. 19. The accused petitioner namely, Dipanjan Baidya shall be released on bail on furnishing a bail bond of Rs. 2,00,000/- with two sureties of the like amount out of which one of the surety must be Government employee in the state Assam, to the satisfaction of the learned Sessions Judge, Sribhumi (Karimganj). The direction for bail is further subject to the following conditions that the accused petitioner- a. shall not leave the territorial jurisdiction of the learned Trial Court without prior written permission from him/her till disposal of the case. Page No.# 7/7 b. shall regularly attend the trial Court and cooperate with the Court for early disposal of the trial; and 20. The learned Sessions Judge, Sribhumi (Karimganj) is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial. 21. The observation made by this Court is for the purpose of this bail application only, not on merits of the case. 22. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant