Gauhati High Court
Page No.# 1/15 vs The State Of Assam on 11 April, 2025
Page No.# 1/15
GAHC010218682024
2025:GAU-AS:4663
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3241/2024
KABEL UDDIN AND ANR
S/O LATE MOIJUDDIN
R/O VILL- GOROIMARI (BANIAPARA), P.S. AND DIST. BARPETA, ASSAM
2: SABUR ALI
S/O LATE MOIJUDDIN
R/O VILL- GOROIMARI (BANIAPARA)
P.S. AND DIST. BARPETA
ASSA
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. N J DUTTA, MR A BASUMATARY,MR. M M ZAMAN,MR N
AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
11.04.2025 Heard Mr. N.J. Dutta, learned counsel for the accused/petitioners. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the respondent State.
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2. This application is filed under Section 483 of BNSS for grant of regular bail to the accused/petitioners namely, Kabel Uddin and Sabur Ali who were arrested on 9.5.2024 in connection with Special (NDPS) Case No. 74/2024 being registered under Section 21(c)/29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS") pending before the court of learned Special Judge, Kamrup, Amingaon arising out of Boko P.S. Case No. 198/2024.
3. The gist of the matter is that on 9.5.2024 at 9:00 am, the complainant lodged an FIR alleging that on 9.5.2024 he received information that two carriers were carrying narcotics from Silchar in Alto car and that they would deliver the narcotics at Boko PS area. It is the further case of the prosecution that based on the aforesaid information the police party went to the location and upon tracing the vehicle, tried to apprehend the same, however, the vehicle escaped towards Guwahati and after chasing the vehicle for a long time, the said vehicle was finally intercepted near Hajo PS. Upon intercepting the said vehicles, two occupants i.e. the petitioners were found and on being questioned they admitted that narcotics contrabands articles were hidden inside the driver's steering column. It is the further case of the prosecution that upon checking and opening the said portion, 30 soap boxes containing as many as 30 packets of suspected heroin were found and the same were seized in presence of witnesses and weighed was 347 grams without soap cover. Accordingly the vehicle and the narcotics were seized and the accused/petitioners were arrested. Thereafter, the case was registered.
4. Mr. N.J. Dutta, learned counsel for the accused/petitioners submits that the petitioners were arrested without following the constitutional safeguards provided under Article 22(1) of the Constitution of India. He submits that the grounds of arrest is not disclosed as required under the law to the accused/petitioners at the time of arrest. He further submits that the safeguard as contained under section 50 and 50(A) of CrPC has also not been complied with by the arresting authority and hence the arrest is illegal and the accused/petitioners are entitled to be released forthwith. He Page No.# 3/15 relies upon the following decisions:-
1. Prabir Purkayashtya Vs. State (NCT of Delhi), 2024 8 SCC 254 at para- 22,30,31 & 46.
2. Vihaan Kumar Vs. State of Haryana & Anr, 2025 SCC Online SC 269 at para-14,16,28 & (2 &3).
3. Mahabubul Haque Vs. State of Assam at para-16, (B.A. No.563/2025).
4. Mufujul Islam @ Mufuzul Islam Vs. State of Assam,(B.A. No. 3519/2024)
5. Mufujul Islam @ Mufuzul Islam Vs. State of Assam at para-13 (B. A. No.251/2025)
6. Joynal Hussen @ Joynal Hussain & Anr Vs. State of Assam (B. A. No.683/2025).
7. Ajir Ali @ Budu Vs. State of Assam at Para- 25 (B.A.No.255/2025).
5. Per contra, Mr. P.S. Lahkar, learned Additional Public Prosecutor vehemently opposes the prayer for bail and submits that the mandate of Article 22(1) of the Constitution of India is only to inform the arrested person as regards the ground of arrest and it is not mandatory that the same shall be in writing. In support of the aforesaid submission, he relies upon the decisions of the Apex Court in the case of State of M.P Vs Sobaram & Others reported AIR 1996 SC 1910 and D.K Basu Vs. State of W.Bengal reported in (1997) 1 SCC 416.
6. I have given my prudent consideration to the arguments advanced by both the learned counsels appearing for the contending parties and I have also perused the materials available on records. I have also considered the case laws cited at the bar.
7. It appears that the accused/petitioners were arrested in the case in question after recovering the contraband articles from their possessions. It further appears that the charge-sheet has been submitted against the petitioners. However, the trial has not yet commenced. It appears that the ground taken in this bail application is that Page No.# 4/15 Article 22(1) of the Constitution of India was not followed and Section 50 and 50(A) of the CrPC has not been complied with by the arresting authority.
8. Article 22(1) of the Constitution of India reads as hereunder:-
"(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."
9. A perusal of the aforesaid Article, it is apparent that no person shall be detained in custody without being informed of the grounds for such arrest. A bare perusal of the aforesaid provision amply demonstrates that it is the fundamental right of an arrested person to be informed of the grounds of arrest at the time of arrest by the detaining/arresting authority.
10. Apt to refer to Section 50 and 50(A) of CrPC which reads as hereunder:-
"50. Person arrested to be informed of grounds of arrest and of right to bail.
--(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
[50A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.--(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in Page No.# 5/15 this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.]
11. Reading of the aforesaid provisions, it is further apparent that it is the duty of the Police Officer or Arresting Officer to inform the person arrested without warrant the grounds of arrest and right to bail. It further appears that it is imperative for such officer also to inform such grounds to the family members or friends or other persons as may be disclosed or nominated by the arrested persons.
12. In order to examine the above stated ground apt to refer to the notice issued under Section 50 CrPC to both the petitioners, which reads as hereunder:
"NOTICE U/S 50 CrPC Date 09.05.2024 Name- Sabur Ali Age - 52 Yrs S/O - Late Moijuddin Vill -Goroimari (Baniapara) PS - Barpeta Dist - Barpeta (Assam) Ref: Boko PS Case No 198/2024, U/S 21(C)/29 of NDPS Act.
You are hereby informed through this notice that you have been arrested in connection with above reference case and will be forwarded to the Court being the offence non bailable to police. You may submit petition before Hon'ble Court for your bail.
Signature of arrestee:
Signature of I/O Officer in charge Boko Police Station Dist-Kamrup (Assam)"
Page No.# 6/15 "NOTICE U/S 50 CrPC Date 09.05.2024 Name- Kabel Uddin Age - 33 Yrs S/O - Late Moijuddin Vill -Goroimari (Baniapara) PS - Barpeta Dist - Barpeta (Assam) Ref: Boko PS Case No 198/2024, U/S 21(C)/29 of NDPS Act.
You are hereby informed through this notice that you have been arrested in connection with above reference case and will be forwarded to the Court being the offence non bailable to police. You may submit petition before Hon'ble Court for your bail.
Signature of arrestee:
Signature of I/O Officer in charge Boko Police Station Dist-Kamrup (Assam)"
13. Perusal of the aforesaid two notices, it appears that the petitioners were merely informed that they have been arrested in connection with Boko PS Case No. 198/2024 registered under Section 21(c)/29 of the ND&PS Act, 1985 and that the offence is non-bailable one and that the petitioners may apply for bail.
14. Apt also to refer to the arrest memo to the two accused/petitioners which reads as hereunder:-
"Date- 09/05/2024 ARREST MEMO
1. Name & particulars of person arrested:
Name- Kabel Uddin Age - 33 Yrs Page No.# 7/15 S/O - Late Moijuddin Vill -Goroimari (Baniapara) PS - Barpeta Dist - Barpeta (Assam)
2. PS Case of arrest : Boko Case No- 198/2024, U/S-21(C) /29 of NDPS Act.
3. Place of arrest : Boko Police Station
4. Date & Time of arrest : 9.5.2024 at 10:30 Am
5. Injuries present at the time of arrest : As per doctors report. (If yes, make Inspection Memo of reverse).
6. Signature and name of Relative/Witness to arrest : WT Message send to the concern Police Station Vide S/No-Boko PS. Vol-1/2024/411- 416.
7. Signature of arrested person:
8. Signature & Full Name of arresting Officer: WSI(P) Porishmita Rajkhowa, Boko PS arresting Officer I/O of the case Boko PS District- Kamrup(Assam)."
"Date- 09/05/2024 ARREST MEMO
1. Name : Sabur Ali Age - 52 Yrs S/O - Late Moijuddin Vill -Goroimari (Baniapara) PS - Barpeta Dist - Barpeta (Assam)
2. PS Case of arrest : Boko Case No- 198/2024, U/S-21(C) /29 of NDPS Act.
3. Place of arrest : Boko Police Station
4. Date & Time of arrest : 9.5.2024 at 10:30 Am
5. Injuries present at the time of arrest : As per doctors report. (If yes, make Inspection Memo of reverse).
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6. Signature and name of Relative/Witness to arrest : WT Message send to the concern Police Station Vide S/No-Boko PS. Vol-1/2024/411- 416.
7. Signature of arrested person:
8. Signature & Full Name of arresting Officer: WSI(P) Porishmita Rajkhowa, Boko PS arresting Officer.
I/O of the case Boko PS District- Kamrup(Assam)."
15. Perusal of the arrest memo also indicates that except the names, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest.
16. Apt also refer to the WT message issued by the OC, Boko Police Station to the OC Barpeta Police Station in connection with the aforesaid case which reads as hereunder:-
"WT MESSAGE(.) TO : O/C BARPETA POLICE STATION (.) INFO : DISPOL KMP/ADDL SP HQ KMP/DSP HQ KMP/CRIME BRANCH KMP(.) FROM : O/C BOKO POLICE STATION (.) S/NO: BOKO PS VOL-1/2024/411-416 DATED:09.05.2024 REF: BOKO PS CASE NO -198/2024, U/S -21(C)/29 OF NDPS Act.
KINDLY INFORM TO THE FAMILY/RELATIVES OF ARRESTED ACCUSED PERSONS NAMELY - (1)KABEL UDDIN (33 YEARS), S/O LATE MOIJUDDIN OF VILLAGE- GOROIMARI (BANIAPARA), PS BARPETA, DIST-BARPETA, ASSAM & (2) SABUR ALI (52 YEARS) , S/O LATE MOIJUDDIN OF VILLAGE-GOROIMARI (BANIAPARA), PS BARPETA, DIST-BARPETA, ASSAM THEY HAVE BEEN ARRESTED IN CONNECTION WITH ABOVE REFERENCE CASE ON 09.05.2024(.) THE ACCUSED PERSONS RESIDENCE FALLS UNDER YOUR JURISDICTION (.)FFI(.)"
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17. A perusal of the aforesaid WT message appears that the OC Barpeta PS was asked to inform the family and relatives of the accused arrested person however whether such grounds of arrest has been communicated to the family member of the accused persons or not is not available in the case diary. Mr. P.S. Lahkar, learned Additional Public Prosecutor in so many words has also submitted that there is no materials available in the case records indicating that the grounds of arrest were informed to the accused petitioners at the time of his arrest or to his family members.
18. Thus, it is admitted position that the grounds of arrest were not informed to the accused/petitioners at the time of his arrest which is the fundamental right of the accused. Non-furnishing grounds of arrest to the arrested persons at the time of arrest makes such arrest illegal and the arrested person has to be released forthwith. Reference in this regard is made to the decision of the Apex Court Pankaj Bansal Vs. Union of India & Ors. reported in 2024 7 SCC 576, which is reproduced hereunder for ready reference:-
"38. In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 PMLA enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the court must be satisfied, after giving an opportunity to the Public Prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorised officer arrested him/her under Section 19 and the basis for the officer's "reason to believe" that he/she is guilty of an offence punishable under the 2002 Act. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 PMLA, is meant to serve this higher purpose and must be given due importance.
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39. We may also note that the language of Section 19 PMLA puts it beyond doubt that the authorised officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the 2002 Act. Section 19(2) requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the adjudicating authority in a sealed envelope. Though it is not necessary for the arrested person to be supplied with all the material that is forwarded to the adjudicating authority under Section 19(2), he/she has a constitutional and statutory right to be "informed" of the grounds of arrest, which are compulsorily recorded in writing by the authorised officer in keeping with the mandate of Section 19(1) PMLA. As already noted hereinbefore, it seems that the mode of informing this to the persons arrested is left to the option of ED's authorised officers in different parts of the country i.e. to either furnish such grounds of arrest in writing or to allow such grounds to be read by the arrested person or be read over and explained to such person."
19. Reading of the aforesaid decision of the Apex Court, it is apparent that the arrested person has a constitutional and statutory right to be informed of the grounds of arrest, which is to be compulsorily recorded in writing.
20. Reference is also made to the decision of the Apex Court in the case of Prabir Purkayashtya Vs. State (NCT of Delhi) (Supra) wherein the Apex Court in paragraph 19, 21 and 48 has held as hereunder:-
"19. We may note that the modified application of Section 167 Cr.P.C. is also common to both the statutes. Thus, we have no hesitation in holding that the interpretation of statutory mandate laid down by this Court in the case of Pankaj Bansal (supra) on the aspect of informing the arrested person the grounds of arrest in writing has to be applied pari passu to a person arrested in a case registered under the provisions of the UAPA.
21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. vs. State of Kerala, (2000) 8 SCC 590:
"7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens."
Page No.# 11/15 Thus, any attempt to violate such fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly.
48.We have carefully perused the arrest memo (Annexure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a proforma indicating the formal 'reasons' for which the accused was being arrested.
21. Reference is also made to the decision of the Apex Court in the case of Vihaan Kumar Vs. State of Haryana & Anr(Supra). Paragraphs 12, 13, 14, 16, 21 are reproduced hereunder for ready reference:-
"12. This Court held that the language used in Articles 22(1) and 22(5) regarding communication of the grounds is identical, and therefore, this Court held that interpretation of Article 22(5) made by the Constitution Bench in the case of Harikisan v. State of Maharashtra3, shall ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the ground of arrest is concerned. We may also note here that in paragraph 21, in the case of Prabir Purkayastha2, this Court also dealt with the effect of violation of Article 22(1) by holding that any infringement of this fundamental right would vitiate the process of arrest and remand. Paragraph 21 reads thus:
"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 committed at the time of arresting the accused and the grant of initial police custody remand to the accused." (emphasis added) 3 1962 SCC OnLine SC 117
13. In the case of Lallubhai Jogibhai Patel v. Union of India4, in paragraph 20, this Court held thus:
"20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the "grounds" should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the "ground" to the detenu is to enable him to make a purposeful and effective representation. If the "grounds" are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this Page No.# 12/15 point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra [1962 Supp 2 SCR 918 : AIR 1962 SC 911 : (1962) 1 4 (1981) 2 SCC 427 Cri LJ 797] and Hadibandhu Das v. District Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 :
1969 Cri LJ 274] ." (emphasis added) Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in the case of Pankaj Bansal1, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate. If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above.
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.
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 Page No.# 13/15 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.
21. Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated.
Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);
e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. 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 to grant bail when the violation of Articles 21 and 22 of the Constitution is established."
22. Apt also to reproduce paragraph 2 of the concurrent findings of the second Judge in the aforesaid case, which reads as hereunder:-
"2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been Page No.# 14/15 incorporated in Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the CrPC (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the CrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the CrPC."
23. Apparent reading of the aforesaid judgment of the Apex Court, it appears that the Apex Court has clearly held that the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is communicated in writing to the arrested person and the same shall not be curtailed by any statutory restriction contained in any other statute.
24. In the instant case as discussed above, it is seen that there is no mention of grounds of arrest in the notice issued to the present accused/petitioners under Section 50 of Cr.P.C and except the names, address, case numbers and alleged provision of law, there is no mention about any other particulars of the offence as well as the grounds of arrest. The argument of learned Additional Public Prosecutor to the effect that the ground of arrest need not be in writing is totally fallacious and therefore the same is rejected. It is thus the opinion of this Court that unless the grounds of arrest is communicated in writing with the particulars of offence, the constitutional safeguard under Article 22(1) of the Constitution of India would be a mere formality and will not serve the purpose with which the framer of the constitution has provided such constitutional safeguards to an arrested person.
25. In view of the fact that the grounds of arrest were not communicated to the accused/petitioners at the time of arrest, the rigor of Section 37 of the NDPS Act shall not follow. Hence, this Court finds it a fit case to extend the privilege of bail to the accused/petitioners.
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26. Accordingly, it is provided that on furnishing of a bail bond of Rs. 50,000/- (Rupees fifty thousand) only with two surety of like amount each, provided that one surety has to be a Government servant to the satisfaction of the learned Special Judge(NDPS), Kamrup, Amingaon, the accused/petitioners, named above, in connection with the above noted case be enlarged on bail subject to the following conditions:-
(a) shall not leave the territorial jurisdiction of jurisdictional learned Special Judge, under the NDPS Act, without prior written permission from him;
(b) shall deposit his Passport/visa, etc if any, in the court of the learned jurisdictional Special Judge;
(c) shall not hamper with the investigation, or tamper with the evidence of the case;
(d) 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; and
(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.
27. In terms of the above, the bail application stands disposed of.
JUDGE Comparing Assistant