Page No.# 1/5 GAHC010049092025 2025:GAU-AS:3528 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./683/2025 JOYNAL HUSSEN ALIAS JOYNAL HUSSAIN AND ANR S/O AFTAB ALI, RESIDENT OF VILLAGE AND PO FULBARI, PS CHURAIBARI, DIST NORTH TRIPURA, TRIPURA, 799262 2: JAKIR HUSSEN @ JAKIR HUSSAIN S/O ABDUL SUKKUR RESIDENT OF VILLAGE PO AND PS KADAMTALA DIST NORTH TRIPURA TRIPURA 79926 VERSUS THE STATE OF ASSAM REP. BY PP ASSAM Advocate for the Petitioner : MS A MAJUMDER, MD I H LASKAR,MR. R A MAZUMDER,MR. M AHMED,MR. D HUSSAIN Advocate for the Respondent : PP, ASSAM, Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 26-03-2025 Heard Mr. D. Das, learned Senior Counsel assisted by Mr. D. Hussain, learned counsel for the petitioners and Mr. B. Sarma, learned Additional Public Prosecutor, Assam, for the State. 2. By this application filed on 05.03.2025 under Section 483 BNSS, 2023, the petitioners, namely, (i) Joynal Hussen @ Joynal Hussain, son of Aftab Ali, resident of Village- Fulbari, P.O.- Fulbari, Police Station-Churaibari, District-North Tripura, Tripura and (ii) Jakir Hussen @ Jakir Hussain, son of Abdul Sukkur, resident of Village-Kadamtala, P.O.- Kadamtala, Police Station-Kadamtala, District-North Tripura, Tripura have prayed for their bail in Special (NDPS) Case No.53/2024, arising out of Bazaricherra P.S. Case No. 90/2024 registered under Sections 22(c)/25/29 of the NDPS Act, in which, they were arrested on 16.09.2024 and are in custody since then. 3. Mr. Das, learned Senior Counsel submitted that the petitioners were arrested on 16.09.2024 in Bazaricherra P.S. Case No. 90/2024 under Sections 22(c)/25/29 of the NDPS Act without complying with the provisions of Section 47 and 48 of the BNSS and violating the provisions of Article 22(1) of the Constitution of India. 4. In that regard by filing an additional affidavit on 21.03.2025 the petitioners placed before the Court the Notices issued to the accused petitioner Joynal Hussain under Section 47 of the BNSS, 2023 by the Officer-in-Charge of Bazaricherra Police Station, District Karimganj in said Bazaricherra P.S. Case No. 90/2024 which is extracted below:- “You are hereby informed that you are under arrest in connection with the above noted reference case, which is non-bailable to police. So, you will be forwarded to the Hon’ble Ld. Court. You can submit your petition before the Hon’ble Ld. Court for bail. Signature of the Arrestee Signature of the I.O. Sd/- Illegible Officer-in-Charge Page No.# 3/5 Bazaricherra Police Station District-Karimganj, Assam 5. Similar Notice under Section 47 BNSS, 2023 was also issued to the other accused petitioner Jakir Hussian by the Officer-in-Charge Bazaricherra Police Station District- Karimganj, Assam copy of which has been annexed in the said additional affidavit. 6. Placing reliance on the decision of the Hon’ble Apex Court in the cases of Vihaan Kumar Vs. State of Haryana and Another, reported in (2025) SCC OnLine SC 269 and other decisions of this High Court, Mr. Das, learned Senior Counsel submitted that at the time of arrest of an arrestee the State/Prosecution is bound to comply with the provisions of Sections 47 and 48 of the BNSS, 2023 (Section 50/50A of the CrPC) by serving and/or communicating the grounds of arrest and of right to bail as well as obligation of person making arrest to inform about the arrest, etc., to relative or friend, which are mandatory in nature that are in compliance of the provisions of Article 21of the Constitution. 7. By order dated 24.03.2025 the respondent State was directed to enquiry and to apprise the Court as to whether the provisions of Section 47 and 48 of the BNSS was duly complied with while arresting the petitioners in the case or not and accordingly fixed the matter today. 8. On instruction, Mr. B. Sarma, learned Addl. PP submitted that the State had complied with the provisions of Section 57 of the BNSS, 2023 (Section 56 of the CrPC) and produced the arrested accused persons before the Magistrate having jurisdiction after their arrest. 9. Perused the scanned copy of the records of Special (NDPS) Case No.53/2024 as well as the copy of records of Bazaricherra P.S. Case No. 90/2024 that were called for by order dated 10.03.2025. 10. On perusal of the records it is seen that while arresting the petitioners on 15.09.2024 in said Bazaricherra P.S. Case No. 90/2024 Arrest Memos were served on the relatives of the petitioners, but no such grounds of arrest under Section 47 BNSS had been served upon the petitioners with full particulars of the offence for which they were arrested with the other grounds for such arrest except referring the Bazaricherra P.S. Case No. 90/2024 under Sections 22(c)/25/29 of the NDPS Act. 11. In the case of Vihaan Kumar (supra) the Hon’ble Apex Court have held that — The Page No.# 4/5 requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement under Article 22 (1) included in the Part-III of the Constitution under the heading of Fundamental Rights, as such, 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 violation of the fundamental right of the arrestee guaranteed under Article 22(1) which would also amount to depriving the arrestee of his/her liberty, since Article 21 of the Constitution provides that no person can be deprived of his liberty except in accordance with the procedure established by law and the procedure established by law also includes what is provided in Article 22(1). 12. In the said case of Vihaan Kumar (supra) the Hon’ble Apex Court further held that — 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 granted under Article 21 and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds to arrest as soon as may be after the arrest, the arrest is vitiated and once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second. 13. For the reasons above, this bail application of the petitioners, namely, (i) Joynal Hussen @ Joynal Hussain, son of Aftab Ali and (ii) Jakir Hussen @ Jakir Hussain, son of Abdul Sukkur in said Special (NDPS) Case No.53/2024, arising out of Bazaricherra P.S. Case No. 90/2024 is accepted. 14. Accordingly, the petitioners, namely, (i) Joynal Hussen @ Joynal Hussain, son of Aftab Ali and (ii) Jakir Hussen @ Jakir Hussain, son of Abdul Sukkur be released on bail forthwith in said Special (NDPS) Case No.53/2024, arising out of Bazaricherra P.S. Case No. 90/2024 presently pending before the Court of learned Special Judge (NDPS)-cum- Additional Sessions Judge, Sribhumi (Karimganj) on furnishing a bail bond of Rs. 75,000/-, each, with two local sureties each of the like amount to the satisfaction of the learned Special Judge (NDPS)-cum-Additional Sessions Judge, Sribhumi (Karimganj) on conditions that both the petitioners, named above — (i) shall appear before the said Special Judge (NDPS)-cum-Additional Sessions Page No.# 5/5 Judge, Sribhumi (Karimganj) in said Special (NDPS) Case No.53/2024, arising out of Bazaricherra P.S. Case No. 90/2024 on the dates fixed till conclusion of the trial of the said case; (ii) neither of the petitioners shall leave the jurisdiction of the Court of learned Special Judge (NDPS)-cum-Additional Sessions Judge, Sribhumi (Karimganj) without obtaining prior written permission from the said Court; (iii) shall not hamper with the investigation or tamper with the evidence of the case; (iv) 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 them from disclosing such facts to the Court or to any police officer and (v) shall not indulge themselves in any criminal activities including possession or procurement, transportation, selling etc., of such NDPS items. 15. 15. It is made clear that violation of any of the grounds, noted above, by either of the petitioners, named above, the bail granted to them in said Special (NDPS) Case No.53/2024, arising out of Bazaricherra P.S. Case No. 90/2024 shall stand automatically vacated against both of them. 16. This bail application is accordingly stands disposed of. JUDGE Comparing Assistant