Gauhati High Court
Abdullah Al Mahmud Choudhury @ Abdullah ... vs The State Of Assam on 23 April, 2025
Page No.# 1/5
GAHC010076902025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1172/2025
ABDULLAH AL MAHMUD CHOUDHURY @ ABDULLAH CHOUDHURY @
BABLU
SON OF LATE MOINUL ISLAM CHOUDHURY, RESIDENT OF EAST
KANISHAIL,
P.S. KARIMGANJ
DIST. KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED,U U
KHAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
ORDER
23.04.2025 Heard Mr. A. Ahmed, learned counsel for the accused and also heard Mr. K. Baishya, learned Additional Public Prosecutor, Assam, appearing for the State respondent.
Page No.# 2/5
2. This bail application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by the accused, namely, Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu, who has been languishing in jail hazot since 06.05.2023, in connection with Special (NDPS) Case No.43/2023, arising out of Karimganj P.S. Case No.334/2023 under Section 21(c)/25/29 of the NDPS Act, for grant of bail.
3. It is to be noted here that this is the 4 th bail application preferred by the accused and the earlier bail applications, being Bail Appln. Nos.4676/2023, 1587/2024 and 2702/2024 were dismissed by this Court vide orders dated 12.02.2024, 24.06.2024 and 27.01.2025, respectively. The instant bail application is preferred on the ground that while causing arrest of the accused, the I.O. has not complied with the provision of Section 50A of the Cr.P.C. and the ground of arrest has not been communicated by the Investigating Officer (I.O.) in writing to the accused.
4. It is also to be noted here that the accused, namely, Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu was arrested in connection with Special (NDPS) Case No.43/2023, arising out of Karimganj P.S. Case No.334/2023 under Section 21(c)/25/29 of the NDPS Act, on the basis of one FIR lodged by S.I. Badru Zaman Ahmed of Karimganj P.S. on 05.05.2023. The allegation against him is that acting on a tip off, on 05.05.2023, at about 5:20 a.m., the informant had intercepted one Maruti Alto vehicle, bearing Registration No.AS-10F-4531, driven by one Abul Kayer Md. Siddique and during search, the I.O. has recovered 48 nos. of soap cases, containing 567 gms of suspected Heroin and during interrogation, the driver disclosed that the accused was the receiver of the aforesaid consignment of contraband substance.
5. Mr. Ahmed, learned counsel for the accused referring to page Nos.71 and 73 of the application, i.e., the notice under Section 50 Cr.P.C. issued to the accused, by the arresting authority and the arrest memo, submits that nowhere in the aforesaid two documents the ground of arrest was communicated to the accused and in view of the decision of Hon'ble Supreme Court in the case of Vihaan Kumar v. State of Haryana & Anr., reported in 2025 SCC OnLine SC 269 at paragraph Nos.14 and 15 and also the decision of Hon'ble Supreme Court in the case of Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254, specially in paragraph Nos.29, 30 and 31, submits that for Page No.# 3/5 non-compliance of the aforesaid requirement, the right of the accused guaranteed under Article 22(1) of the Constitution of India is violated and therefore, it is contended to allow the petition.
6. It is to be noted here that to appreciate the submission of learned counsel for the accused, scanned copy of the case diary was called for from the Court of learned Special Judge, Sribhumi and having gone through the same, Mr. Baishya, learned Additional Public Prosecutor, Assam, submits that except page Nos.71 and 73, i.e., the notice under Section 50 Cr.P.C. to the accused and the arrest memo, there is no other document to show that while causing arrest of the accused, the I.O. has complied with the aforementioned provision by communicating the grounds of arrest in writing to the accused.
7. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also gone through the case diary received from the learned Trial Court. Also, I have carefully gone through the decisions referred by learned counsel for the accused.
7.1. It is to be noted here that while dealing with the issue, of communication of ground of arrest to the accused, in the case of Vihaan Kumar (supra), Hon'ble Supreme Court has held as under:-
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 Page No.# 4/5 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.
8. In the instant case, having perused page Nos.71 and 73 of the petition, which are the Notice under Section 50 Cr.P.C. and the Memo of Arrest, there is no other document to show that the grounds of arrest were communicated to the accused while causing arrest of the accused. And as such, the arrest of the accused appears to be illegal and contrary to the provisions of law and also of the decisions of Hon'ble Supreme Court in the case of Vihaan Kumar (supra) and Prabir Purkayastha (supra).
9. It is a fact that the accused herein this case is arrested under Section 21(c)/25/29 of the NDPS Act. Indisputably, the quantity of contraband substances so recovered from his Page No.# 5/5 possession was commercial quantity. And as such, there is a requirement of satisfying the twin conditions of Section 37 of the NDPS Act. But, in the case of Vihaan Kumar (supra) it has been held that when a violation of Article 22(1) is established, it is the duty of the Court to forthwith order the release of the accused and 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.
10. Under the aforesaid facts and circumstances, this Court is inclined to allow this bail application. It is provided that on furnishing a bail bond of ` 1,00,000/- with one surety of like amount to the satisfaction of the learned Trial Court, the accused, namely, Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu, shall be enlarged on bail. The learned Trial Court shall be at liberty to impose further condition to ensure presence of the accused during trial.
11. In terms of above, this bail application stands disposed of.
JUDGE Comparing Assistant