Page No.# 1/8 GAHC010052732025 2025:GAU-AS:4487 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./763/2025 MD NUR MAHAMMAD AND 2 ORS S/O LATE JOYNAL ABEDIN VILL-SILAMARI, P.S. GUHAIBANGA P.O. BURIGANG,P.S. GINGIA DIST. BISWANATH, ASSAM 2: MD. NUR HUSSAIN S/O MD.ABBASH ALI VILL-BALIPUKHURI P.O. BURIGANG P.S.GINGIA DIST. BISWANATH ASSAM 3: MD. ABU TAHIR S/OMD. ABUL HUSSAIN VILL-GARMARA PATHAR P.O.GARMARA P.S. DHEKIAJULI DIST. SONITPUR ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Page No.# 2/8 Advocate for the Petitioner : MR S MUKTAR, Advocate for the Respondent : PP, ASSAM, Mr. B SHARMA, SPL. PP WILDLIFE FOREST, ASSAM BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 09.04.2025 Heard Mr. S. Muktar, learned counsel for the petitioners. Also heard Mr. B. Sharma, learned Special Public Prosecutor, Wildlife for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioners, who have been arrested in connection with Bokakhat P.S. Case No. 141/2024, under Sections 61(2)/147/148/303(2)/317(2) of BNS, 2023 read with Sections 17/18 UA(P) Act read with Section 51(1) of Wildlife Protection Act, corresponding to GR No. 165/2024. 3. Case Diary, as called for, has already been received and I have perused the same. 4. It is submitted by Mr. Muktar, learned counsel for the petitioners, that the present accused/petitioners are innocent and no way connected with the offence as alleged in the F.I.R. However, they were shown arrest in connection with this case on the basis of the prayer made by the I.O. before the learned Special Judge, Golaghat and the learned Trial Court, after perusal of the Case Page No.# 3/8 Diary, allowed the prayer for shown arrest along with 3 (three) days police remand, as sought for by the I.O. After completion of police remand, they were forwarded to judicial custody, but the present petitioners were never provided with any Arrest Memo or the Notices under Sections 47 & 48 of BNSS intimating the grounds of arrest in connection with this case, though they were shown arrest on the prayer made by the I.O. and to that effect, the petitioners have already filed an additional affidavit. 5. Mr. Muktar further submitted that the present accused/petitioners are behind the bar in connection with this case for last 79 days and hence, considering the length of detention also, they may be released on bail. Further he submitted that nothing has been seized from the possession of the present accused/petitioners though they were arrested alleging that they were involved in the conspiracy to commit the offence. He further submitted that the petitioner No. 3 is pursuing his studies in Bachelor of Arts and considering his future and also his age, he may be released on bail. 6. Further Mr. Muktar submitted that non-compliance of the Section 47 BNSS is in violation of Articles 21 & 22(1) of the Constitution of India and thus, the same is mandatorily required to be followed. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to them at the time of their arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself. 7. In support of his submissions, Mr. Muktar, learned counsel for the Page No.# 4/8 petitioner, has cited the following decisions: (i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269. (ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254. 8. Mr. Sharma, learned Special Public Prosecutor, Wildlife submitted in this regard that from the materials available in the Case Diary, it is seen that present accused/petitioners are the habitual offenders and 3 (three) cases with similar kind of allegations are already pending against them before the Court and hence, considering the conduct and gravity of the offence, their prayer for bail may not be considered at this stage. 9. After hearing the submissions made by the learned counsels for both sides and also on perusal of the Case Diary, it is seen that some incriminating materials have been collected by the I.O. against the present petitioners showing their involvement in the alleged offence. Further it is seen that the present petitioners were shown arrest in connection with this case and they were also remanded to police custody for 3 (three) days. However, without going into the details of the merit of the case, it is seen that no Notices under Section 47 & 48 of BNSS or the Arrest Memo was furnished to the present accused/petitioners while they were shown arrest in connection with this case. It is a settled law that the accused should be provided with the Arrest Memo as well as Notices under Sections 47 & 48 of BNSS at the time of their arrest and Page No.# 5/8 they have the statutory right to know about the grounds of arrest as to why they were shown arrest in the said case and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police. 10. The Hon’ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph Nos. 19, 21 & 48 of the judgment as under: “19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India. 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 3 (2000) 8 SCC 590committed 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 tempering 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 Page No.# 6/8 on charge of a crime whereas the ‘grounds of arrest’ 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.” 11. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court has held has under: “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. 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.” 12. In the instant case also, as discussed above, it is seen that while arresting the present accused/petitioners, the Arrest Memo as well as in the Notice under Sections 47 & 48 of BNSS were not furnished to them. So, from the proviso of Section 47 BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India. Page No.# 7/8 13. More so, it is seen that the petitioners are behind the bar for last 79 days and they were also in police remand for 3 (three) days and thus, it can be held that the I.O. got sufficient opportunity to interrogate the petitioners keeping them in custody. 14. In view of the entire facts and circumstances, as discussed above, viz-a-viz non-furnishing of Arrest Memo as well as the Notices under Sections 47 & 48 of BNSS, and also considering the period of detention already undergone by the accused/ petitioners as well as considering the view expressed by the Hon’ble Supreme Court in the case laws referred to hereinabove, this Court find it a fit case to extend the privilege of bail to the accused/petitioners. 15. Accordingly, it is provided that on furnishing a bond of Rs. 20,000/- (Rupees fifty thousand) only each with 1 (one) surety of like amount to the satisfaction of the learned Special Judge, Golaghat, the accused/petitioners, namely, (i) Md Nur Mahammad, (ii) Md Nur Hussain & (iii) Md Abu Tahir, be enlarged on bail, subject to the following conditions: (i) that the petitioners shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case; (ii) that the petitioners shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the Page No.# 8/8 facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the petitioners shall not leave the jurisdiction of the learned Special Judge, Golaghat, without prior permission. 16. In terms of above, this bail application stands disposed of. 17. The Case Diary be returned. JUDGE Comparing Assistant