Page No.# 1/8 GAHC010056622025 2025:GAU-AS:4484 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./873/2025 NAJAR ALI S/O- LATE ASRAF ALI, R/O- VILL- SEGUNJHARI, PS CHAPAR, DIST- DHUBRI, ASSAM 2: REJAKUL ISLAM S/O LATE JAHAN UDDIN AHMED RESIDENT OF VILLAGE KHELUAPARA PART II PS JOGIGHOPA DIST BONGAIGAON ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : S RABHA, MR G K DEKA,MR. A M BARUAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 09-04-2025 Page No.# 2/8 Heard Mr. A.M. Baruah, the learned counsel for the petitioners. Also heard Mr. B. Sharma, the learned Additional Public Prosecutor appearing on behalf of the State respondent. 2. This is an application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 praying for grant of bail to the accused/persons, who have been arrested in connection with FIR No. 77 of 2024 in Special (N) 50 (A)/2024 under 22(C), 25 and 29 of the NDPS Act. 3. Scanned copy of the case record has already been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Baruah, the learned counsel for the petitioners, that both the accused/persons are innocent and they are not at all involved in the alleged offence. As per the allegation the contraband are recovered from an abandoned scooty without number plate and the said scooty does not belong to the accused-persons. They were simply standing on the other side of the road and the police arrested those persons without their involvement in the alleged offence. Both the accused/persons, namely, [1] Najar Ali and [2] Rejakul Islam were arrested in connection with the case on 07.03.2024 and thus they are behind the bars since last 398 days. The case has already been charge- sheeted but till date no witness could be examined by the prosecution. The wives of both the accused-persons are the petitioners in the case and in absence of the accused/persons who are the sole bread earners of the families, the wives of the accused-persons somehow filed the petition only with the help of Legal Aid Counsel. Accordingly, it is submitted by Mr. Baruah that the prayer for bail of the present accused/persons may be considered considering their long incarceration and the other aspects of the case. However, both the accused-persons are ready and willing to appear before the learned Page No.# 3/8 Trial Court below on each and every date to be fixed at the Court. 5. The learned Additional Public Prosecutor Mr. Sharma raised objection and submitted that there is no inordinate delay in the case. The charges were already framed on 27.06.2024 and out of 11 nos. of cited witnesses, two are already been examined by the prosecution. Some of the vital witnesses of the prosecution are yet to be examined. Further he submitted that from the materials available in the case record it is seen that the entire contraband were recovered from the conscious possession of the accused/persons which is of commercial quantity and accordingly Mr. Sharma raised objection and submitted that it is not at all a fit case to extend the privilege of bail to the accused-persons. 6. Accordingly, he submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record, it cannot be said that the present accused/persons are innocent, they have not committed such offence nor there is any probability of committing similar kind of offence if they are released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/persons on bail at this stage. 7. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record along with the Case Diary and it is seen that finding sufficient incriminating materials both the accused/persons are charge-sheeted in connection with this case. It is also a fact that the case is of commercial quantity and hence the rigor of Section 37 will follow. In the same time it is also seen that out of 11 nos. of witnesses, 2 are already examined by the prosecution and also it cannot be said that there are inordinate delay in the case proceeding. But, while perusing the case records it has come to the notice of the Court that both the accused/persons were not Page No.# 4/8 intimated the grounds of arrest. Neither of the notice issued u/s 50 Cr.PC, corresponding to Section 47 BNSS nor the Arrest Memo. Further it is also seen that the families or relatives of the accused/persons were also not intimated the ground of arrest by issuing notice u/s 50A Cr.PC, corresponding to Section 48 BNSS. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/persons along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/persons or to their family members at the time of their arrest which is a statutory right of an accused 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. 8. The Hon’ble Apex Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, has held in paragraph No. 19 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 Page No.# 5/8 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 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.” 9. Further, in the case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, the Hon’ble Apex Court has held as 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.” Page No.# 6/8 10. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/persons under Section 50 of Cr.P.C. and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 50 of Cr.P.C., it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider her bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act. 11. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph No. 16 of the said judgment has held as under: “16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.” Page No.# 7/8 12. In the same time, it also cannot be denied that the accused/persons are behind the bar for last 398 days from the date of their arrest and till then, the prosecution has been able to examine only 2 (two) witnesses out of 11 (eleven) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial. 13. In view of the entire facts and circumstances as discussed above, viz-a-viz non- mentioning of grounds of arrest in the Notice issued to the present accused/persons under Section 50 Cr.P.C., and also considering the period of incarceration already undergone by the accused/persons, i.e. 398 days, as well as the 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/persons. 14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) surety of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, North Salmara, Abhayapuri, the accused/persons, namely, [1] Najar Ali and [2] Rejakul Islam, be enlarged on bail, subject to the following conditions: (i) that the accused/persons 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 accused/persons 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; (iii) that the accused/persons shall submit his Aadhar Card and PAN Card before Page No.# 8/8 the learned Special Judge, North Salmara, Abhayapuri; and (iv) that the accused/persons shall not leave the jurisdiction of the learned Special Judge, North Salmara, Abhayapuri, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant