Page No.# 1/8 GAHC010058282025 2025:GAU-AS:4283 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./851/2025 EUSUB ALI MOLLAH @ EUSUB ALI S/O TAIJUDDIN SHEIKH @ TAIJUDDIN MOLLA, VILL-GOBINDAPUR,P.S. GOALPARA DIST. GOALPARA, ASSAM VERSUS THE STATE OF ASSAM REP BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MR J HUSSAIN, Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 07.04.2025 Heard Mr. J. Hussain, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Matia P. S. Case No. 70/2024, registered under Sections 22(c)/29 of NDPS Act. 3. The Case Diary has been received and I have perused the same 4. It is submitted by Mr. Hussain, learned counsel for the petitioner, that the accused/petitioner is innocent and has not committed any offence as alleged in the FIR. He further submits that the accused/petitioner is the driver of the vehicle that has been seized in connection with this case. As the driver, he was supposed to pick up the two co-accused person, but, when they were about to enter the vehicle with the two cartons, the petitioner asked them about the contents of the said cartons, and as a result, he refused to pick them up in the vehicle. Then an altercation took place between the petitioner and the co- accused. Shortly thereafter, the police arrived and arrested them in connection with this case. He further submits that the accused/petitioner was arrested on 24.10.2024, i.e., 165 days, and since then, he is behind the bar. Therefore, he submits that the I.O. got sufficient opportunity for his custodial interrogation. 5. Mr. Hussain, learned counsel for the petitioner, has submitted that the ground of arrest was not mentioned while furnishing the Arrest Memo and issuing notices under Section 47/48 of BNSS, which is a mandatory requirement. Page No.# 3/8 The non-compliance of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution of India. 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 him or to his family members at the time of his 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. 6. In support of his submissions, Mr. Hussain, learned counsel for the 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. 7. Mr. Goswami, the learned Additional Public Prosecutor, submitted that there is sufficient incriminating material available against the accused/petitioner, and the recovery was also made from his conscious possession. He further submitted that the I.O. has also prayed for an extension of the period for investigation, which has already been extended by one month. Furthermore, he admitted that the grounds of arrest were not communicated to the accused/petitioner while issuing the Notices under Section 47/48 of BNSS, as well as in the Arrest Memo. 8. 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 Page No.# 4/8 bail. But, from the materials available in the Case Record, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is 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/petitioner on bail at this stage. 9. After hearing the submissions made by the learned counsels for both sides, I have also perused the case diary and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 47/48 of BNSS. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner 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 in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his 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. 10. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section under Section 47/48 of BNSS rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested Page No.# 5/8 accused/ petitioner would vitiate the arrest even if the case has been charge- sheeted. 11. 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 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 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 Page No.# 6/8 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.” 12. 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 Page No.# 7/8 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.” 13. 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/petitioner under Section 47/48 of BNSS 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 47/48 of BNSS., 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. 14. In the same time, it also cannot be denied that the accused/petitioner is behind the bar since 165 days from the date of his arrest. 15. 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/petitioner under Section 50 Cr.P.C., and considering the view expressed Page No.# 8/8 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/petitioner. 16. 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, Goalpara, the accused/petitioner, namely, Eusub Ali Mollah @ Eusub Ali, be enlarged on bail, subject to the following conditions: (i) that the petitioner 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 petitioner 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 him from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Goalpara; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Goalpara, without prior permission. 17. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant