Abul Hasan Vs the State of Assam

1. Heard Mr. H.R. Choudhury, the learned counsel for the petitioner. Also heard Mr. M.P. Goswami, the learned Additional Public Prosecutor appearing for the State of Assam.

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2. This application under Section 483 of the BNSS, 2023 has been filed

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by the petitioner, namely, Abul Hasan, who has been detained behind the bars since 12.04.2024 (for the last 1 year and 26 days) in connection with Special NDPS Case No. 46/2024, arising out of Nilambazar P.S. Case No. 92/2024 under Section 22(c)/25/29 of the NDPS Act, 1985.

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3. The gist of accusation in this case is that, on 13.04.2024, one Sujit Sinha, SI of Police had lodged an FIR before the Officer-in-charge of Nilambazar Police Station, inter alia, alleging that on receipt of an information through reliable sources that one black colour Kia Car bearing Registration No. AS-01FK2939 is carrying huge quantity of narcotic drugs from Karimganj side to Nilambazar via National Highway No. 8, a naka checking was conducted at Srikrishnagar Colony near A1 Family Restaurant and the aforesaid vehicle was intercepted. There were two occupants in the said vehicle, namely, Abul Hasan and Saharul Islam (present petitioner) and the said vehicle was driven by one Abul Hasan. On search of the said vehicle, 10.916 Kgs of Yaba tablets were recovered from the said vehicle and the present petitioner was arrested on that day itself.

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4. The learned counsel for the petitioner has submitted that while the petitioner was arrested, he was not informed about the ground of his arrest and there is a violation of the constitutional provisions contained in Article 22(1) of the Constitution of India as well as Section 52 of the NDPS Act, 1985 and Section 50 of the Code of Criminal Procedure, 1973.

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5. It is submitted by the learned counsel for the petitioner that the notice under Section 50 which was served on the petitioner at the time of his arrest does not contained the ground of arrest. The only information contained in the said notice is the connected police station case number i.e., Nilambazar P.S. Case No. 92/2024 and the penal provisions involved in the case i.e.,

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Sections 22(c)/25/29 of the NDPS Act, 1985.

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6. On perusal of the said certified copy, it appears that apart from the case number i.e., Nilambazar P.S. Case No. 92/2024 as well as the penal provisions involved in the case i.e., Sections 22(c)/25/29 of the NDPS Act, 1985 nothing was mentioned in the said notice.

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7. The learned counsel for the petitioner has also submitted that the arrest memo as well as inspection memo which were furnished at the time of arrest also does not contain the grounds of arrest.

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8. The learned counsel for the petitioner submits that furnishing the ground of arrest to the person arrested at the time of his arrest is a constitutional as well as statutory mandate and failure to comply with the requirement of informing the ground of arrest as soon as possible after the arrest would make the arrest itself illegal. He also submits that once the arrest is vitiated, the arrested person cannot be detained in custody. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “ Vihaan Kumar –Vs- State of Haryana and Anr.”, reported in “ 2025 SCC OnLine SC 269”.

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9. The learned Additional Public Prosecutor though has fairly submitted that on perusal of the notice under Section 50 of the Code of Criminal Procedure, 1973, which is available on record, it appears that the grounds of arrest were not stated in the said notice, however, he opposes the prayer for bail on the ground that the quantity of contraband seized in this case is of commercial quantity and it was recovered from the conscious possession of the present petitioner. He also submits that the petitioner has not taken the grounds of non furnishing of the grounds of arrest at the earliest instance, and by now

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he is aware about the same ground.

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10. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available in this case.

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11. I have also perused the copy of the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioner at the time of his arrest. I have also perused the arrest memo as well as inspection memo prepared at the time of arrest of the present petitioner.

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12. It appears on perusal of the said notices that apart from the mentioning the police station case number i.e., Nilambazar P.S. Case No. 92/2024 as well as the penal provisions involved in the case i.e., Sections 22(c)/25/29 of the NDPS Act, 1985 no other information has been furnished therein.

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13. The communicating of the grounds of arrest would require the communication of all such details in the hands of Investigating Officer which necessitated the arrest of the accused in a case. The ground of arrest is distinct from the communication regarding arrest made to the petitioner. In the case relied upon by the petitioner in the case of “ Vihaan Kumar v. State of Haryana and Anr.” (supra), the Apex Court has observed that simply informing an individual of his arrest does not fulfill the constitutional and statutory requirement provided a grounds of arrest to the arrestee.

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14. In the instant case, no such basic facts which necessitated the arrest of the present petitioner were communicated to him in the notice served upon him under Section 50 or in any of the other communications. Hence, there is clear violation of constitutional provisions of Article 22 of the Constitutional of India as well as Section 50 of the Code of Criminal Procedure, 1973 and Section

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52 of the NDPS Act, 1985 not furnishing the grounds of arrest to the petitioner at the time of his arrest.

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15. In paragraph No. 20 of the judgment of the Apex Court, in the case of “ Vihan Kumar Vs. State of Haryana and Another” (supra), it is observed as follows:

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“20. 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) has been made. The reason is that due to noncompliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.”

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16. The submission made by the learned Additional Public Prosecutor that as the petitioner has not taken the ground of not furnishing of the grounds of arrest at the earliest opportunity, he is barred from taking such a ground at this later stage, when he is aware about the allegations and grounds on which he was arrested does not appear to be tenable inasmuch as the requirement of furnishing grounds of arrest to an arrestee (the petitioner) in the instant case, is not merely a statutory requirement, but a constitutional mandate and as held by the Apex Court in the judgment discussed hereinbefore, the non furnishing of such a ground of arrest at the time of arrest to an arrestee vitiates the arrest itself and on that ground itself, the petitioner is entitled to get bail.

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17. In view of the above discussion, the petitioner, namely, Abul Hasan, is entitled to be released on bail and accordingly, he is allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a resident of the State of Assam) subject to the satisfaction of

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the learned Sessions Judge, Sribhumi, with the following conditions:

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i. That the petitioner shall cooperate in the investigation of the Nilambazar P.S. Case No. 92/2024;

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ii. That the petitioner shall appear before the Investigating Officer of the Nilambazar P.S. Case No. 92/2024 as and when so required by him for the sake of fair completion of the investigation;

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iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Investigating Officer;

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iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details to the Investigating Officer;

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v. That the petitioner shall not leave the jurisdiction of the Court of learned Sessions Judge, Sribhumi without prior permission of said Court and when such leave is granted by the said Court the petitioner shall submit his leave address and contact details during such leave before the said Court; and

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vi. That the petitioner shall not commit any offence while on bail.

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18. With the above observations, this bail application is disposed of.

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JUDGE

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Abul Hasan v. the State of Assam

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Abul Hasan v. the State of Assam

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