Disposed

Tozzammil Hoque Alias Tozammel Hoque v. the State of Assam

Gauhati HC17 Aug 2025Bail Appln./2003/2025

Case brief

AI extract

What is this about?

NDPS accused in custody was remanded via production warrant without being told grounds of detention until Section 230 documents were supplied 29 days later. Court held a Trial Court is not covered by BNSS Sections 47-48, but Article 22(1) binds courts too; non-communication violated fundamental rights and entitled the petitioner to bail despite the Section 37 embargo.

What did the court decide?

Petitioner granted bail of Rs.50,000 with one like surety, subject to conditions including trial co-operation, appearance as required, contact details, and no travel beyond trial jurisdiction without

Tozzammil Hoque Alias Tozammel Hoque Vs the State of Assam — Narcotics (NDPS) | Gauhati HC (2025)

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GAHC010132572025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Bail Appln./2003/2025

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TOZZAMMIL HOQUE ALIAS TOZAMMEL HOQUE S/O LATE GULLZAR HUSSAIN R/O SOUTH SALMARA PART-II P.S. SOUTH SALMARA DIST. SOUTH SALMARA MANKACHAR, ASSAM

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VERSUS

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THE STATE OF ASSAM REP BY THE LEARNED PP, ASSAM

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Advocate for the Petitioner : MR. N J DUTTA, MR. S M MOLLAH

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Advocate for the Respondent : PP, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

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ORDER

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Date : 18.08.2025

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1. Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for the State of Assam.

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2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely,Tozzammil Hoque @ Tozammel Hoque who has been detained

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behind bars since 11.04.2025 in connection with Special (N) Case No. 06/2025 corresponding to South Salmara Police Station Case No. 143/2024 under Sections 22(c)/29 of the NDPS Act, 1985 pending in the Court of learned Special Judge, South Salmara Mankachar.

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3. The gist of accusation in this case is that on 05.01.2025, one J. Rajkhowa, SI of Police of South Salmara Police Station had lodged an FIR before the Officer-in-charge of South Salmara Police Station, inter alia, alleging that on the basis of information received through reliable sources, a search operation was conducted in the house of one Mozzamil Hoque. During the search operation, 75 nos. of cough syrup bottle (each bottle contain 100 ML) and 58 nos. of strip of SAMPLEX+ Capsules (each strip having 24 nos. of capsules) total 1392 nos. of capsules were recovered from the house of Mozzamil Hoque. Though, the police also entered into the house of the present petitioner, he fled away from there.

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4. The learned counsel for the petitioner has submitted that the petitioner was earlier arrested, on 07.01.2025, in connection with South Salmara P.S. Case No. 4/2025. He further submits that when the petitioner was detained in the prison, a summon was issued to him on 11.02.2025 to answer the charges under Section 22(c) of the NDPS Act, 1985 in connection with South Salmara Police Station Case No. 143/2024. He further submits that as the petitioner was detained behind the bars the Court of learned Special Judge, South Salmara, Mankachar issued a production warrant against the petitioner fixing 11.04.2025 for production of the petitioner before the Court. It is further submitted that the petitioner was accordingly produced before the Court of learned Special Judge. He further submits that on 05.03.2025, charges under

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Sections 22(c)/29 of the NDPS Act, 1985 were framed against the petitioner.

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5. The learned counsel for the petitioner has submitted that on 11.04.2025, the petitioner was produced before the Trial Court in connection with Special (N) Case No. 06/2025 and on the same day, he was remanded to judicial custody in connection with the said case. The learned counsel for the petitioner submits that remand of the petitioner to judicial custody on 11.04.2025 should be treated as his arrest in connection with the said case. To support his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “ Dhanraj Aswani Vs. Amar S. Mulchandani ” , reported in“ (2024) 10 SCC 336 ”wherein it was observed as follows ;-

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“ 17. In Sanjay Kumar Sarangi v. State of Odisha [Sanjay Kumar Sarangi v. State of Odisha, 2024 SCC OnLine Ori 1334] , a learned Single Judge of the High Court of Orissa took the view that there is no statutory bar for an accused in custody in connection with a case to pray for grant of anticipatory bail in a different case registered against him. The Court, upon perusal of the relevant provisions, took the view that arrest means physical confinement of a person with or without the order of the court. The Court noted that Section 167(2)CrPC, which governs “remand”, is applicable to a case where the accused is already arrested, and charge-sheet has not been filed. The Court observed that there is no specific provision in CrPC which governs a situation where a person is required to be arrested/remanded in connection with a new case when he is already in custody in connection with some other case and in such a situation, the accused can only be remanded in connection with the new case on the order of the competent court. Answering the question whether such order of remand by the court can be equated with an act of arrest, the Court held that the purpose of remand as in the case of arrest is to collect evidence during investigation, and thus both amount to one and the same thing”.

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6. The learned counsel for the petitioner submits that under Article 22(1) of the Constitution of India, it is mandated to inform an arrestee about the grounds of his arrest as soon as may be. He further submits that Section 47 of the BNSS, 2023 also mandates the communication of grounds of arrest to an arrestee. The learned counsel for the petitioner has further submitted that Section 48 of BNSS requires that the arresting authority shall forthwith give

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information of such arrest to the relative, friends or such other person nominated by the arrestee.

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7. The learned counsel for the petitioner has submitted that the duty cast by the statutory provisions contained in Sections 47 and 48 of BNSS 2023, to inform the grounds of arrest to an arrestee, is not only of a police officer but of any “other person” making arrest under the BNSS. The learned counsel for the petitioner has submitted that the phrase “other person” would also include a Court being a juristic person and, hence, he submits that the Court also has a mandatory obligation to comply with the requirement contained in Sections 47 and 48 of BNSS, 2023 i.e., to communicate to the arrestee, in writing, about the grounds of his arrest.

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8. The learned counsel for the petitioner has submitted that on the basis of production warrant issued by the Trial Court, the petitioner was produced before it on 11.04.2025 in connection with Special (N) Case No. 06/2025. However, he was not informed about the grounds of his arrest in writing. It was only on 03.05.2025, when the petitioner was again produced before the Trial Court, the copies of documents referred to in Section 230 of BNSS were furnished to him. The learned counsel for the petitioner, therefore, submits that though the petitioner was produced and remanded in connection with Special (N) Case No. 06/2025 on 11.04.2025, however, till 03.05.2025, he was not informed, in writing, about the grounds of his arrest. The learned counsel for the petitioner, therefore, submits that by not informing the petitioner about the grounds of arrest till the date of furnishing to him the copies of documents referred to in Section 230 of BNSS, 2023 on 03.05.2025, his fundamental rights guaranteed to him under Article 22(1) of the Constitution of India has been

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violated. He, therefore, submits that on that count the petitioner is entitled to get bail.

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9. On the other hand, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the above named petitioner on the ground that the quantity of contraband seized in the case is of commercial quantity, therefor, the embargo of Section 37 of the NDPS Act, 1985 would be applicable in this case.

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10. The learned Additional Public Prosecutor also submits that in this case while the petitioner was already detained in connection with some other case, he was produced before the Trial Court on the strength of production warrant and was remanded to judicial custody on the strength of custody warrant issued by the Trial Court. He submits that the Trial Court cannot be treated as juristic person. He also submits that the phrase “other person” used in Sections 47 and 48 of BNSS, 2023 does not include a Trial Court as it is neither a natural person nor can be regarded as a juristic person. He further submits that when a person is arrested on the strength of warrant issued by the Court or he is remanded to judicial custody on the strength of a custody warrant, the requirement mentioned in the Sections 47 and 48 of the BNSS, 2023 is not applicable. He, therefore, prays for rejecting the prayer for bail of the petitioner.

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11. I have considered the submissions made by learned counsel for both sides and have perused the materials available on record including the scanned copy of the case records of Special (N) Case No. 06/2025 which was requisitioned in connection with the instant bail application.

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12. On perusal of the scanned copy of the Trial Court records, it appears

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that initially the Trial Court had issued summons to the petitioner in the Special (N) Case No. 06/2025 fixing 11^th of February, 2025 for his appearance. However, as the petitioner was already under detention in connection with South Salmara Police Station Case No. 4/2025, he could not appear before the Trial Court on the said date. Accordingly, the Trial Court issued production warrant for the production of the petitioner before it. It also appears that, though, the petitioner was produced before the Trial Court in connection with Special (N) Case No. 06/2025 on 11.04.2025 and was remanded to custody on the same date, however, the copies of documents as referred to in Section 430 of BNSS, 2023 were furnished to him only on 03.05.2025. There is no indication in the Trial Court record that the petitioner was made aware about the ground of his detention in Special (N) Case No. 06/2025 from the date of his production and remand to custody i.e., 11.04.2025 till copies of documents referred to him in Section 430 of BNSS, 2023 were furnished to him.

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13. This Court is of considered opinion that a Court cannot be included within the meaning of the phrase “other person” used in Sections 47 and 48 of BNSS, 2023. Though, a Trial Court may be regarded as an instrumentality of the statute which creates it for dispensation of justice, however, it cannot be regarded as a juristic person or other person, therefore, the mandate of Sections 47 and 48 of BNSS, 2023 are not applicable when a person is remanded to custody on the strength of a custody warrant after charge-sheet has been laid against the said person.

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14. However, the question raised by the learned counsel for the petitioner that as to when a person was not informed about the grounds of his production in connection with a case in which production warrant was issued, whether such

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a person can be remanded to custody without informing him grounds of his detention and whether it would not violate his fundamental rights guaranteed to him under Articles 21 and 22(1) of the Constitution of India is a very relevant question.

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15. On perusal of the record, it appears that the charge-sheet was laid in Special (N) Case No. 06/2025 under Section 22(c) of the NDPS Act, 1985 on 29.01.2025. It also appears that the petitioner was remanded to custody in connection with Special (N) Case No. 06/2025 on 11.04.2025 and the copies of documents referred to in Section 430 of BNSS were furnished to him on 03.05.2025 only. Thus, it appears that for 29 days after he was remanded to custody in connection with Special (N) Case No. 06/2025, the petitioner was not aware about the grounds for which he was arrested in connection with the said case.

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16. Though, we have discussed in the foregoing paragraphs that under the facts and circumstances of this case applicability of Sections 47 and 48 of BNSS, 2023 may not be there, however, the constitutional mandate of protection against arrest and detention in certain cases as provided under Article 22(1) of the Constitution of India is applicable to Courts of law also. Under the constitutional scheme as provided under Article 22 of the Constitution of India, no Court shall allow the detention in custody of a person unless he has been informed about the grounds of his detention. In catena of decisions of the Apex Court, it has been observed that such grounds of arrest/detention are to be communicated to an arrestee, in writing. Any violation of this requirement would amount to infringement of the fundamental rights of such an arrestee.

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17. In the instant case, as the charge-sheet has already been filed, it was

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the duty of the Trial Court to furnish the copies of documents referred to in Section 430 of the BNSS, 2023 to the petitioner before remanding him to the judicial custody. This would have been regarded as substantial compliance of the mandate of Article 22(1) of the Constitution of India.

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18. If the copies of documents referred to in Section 430 of BNSS, 2023 were not ready on 11.04.2025, i.e., the date on which the petitioner was remanded to judicial custody, the Trial Court could have recorded the ground of detention of the petitioner and the ground for remanding him to judicial custody, in writing, and could have furnished a copy of the same to the petitioner before remanding him to judicial custody. This would also have been treated as substantial compliance of the mandate of Article 22(1) of the Constitution of India. However, by not communicating to the petitioner the ground for his remand to judicial custody for 29 days would amount to violation of the fundamental rights of the petitioner guaranteed to him under Articles 21 and 22(1) of the Constitution of India. There is no material on record to indicate that the petitioner was communicated about the grounds of his detention in connection with Special (N) Case No. 06/2025, before furnishing him the copies of documents referred to in Section 430 of the BNSS, 2023 on 03.05.2025. Thus, for a period of 29 days the petitioner was unaware about the basic facts which necessitated his detention in connection with Special (N) Case No. 06/2025. This, in the considered opinion of this Court has infringed the fundamental rights of the petitioner guaranteed to him under Article 21 of the Constitution of India as well as Article 22(1) of the Constitution of India.

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19. Under such circumstances, the fundamental rights of the petitioner guaranteed to him under Article 21 of the Constitution of India as well as Article

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22(1) of the Constitution of India overrides the statutory embargo of Section 37 of the NDPS Act, 1985 in the aforesaid case. The petitioner is, therefore, entitled to get bail due to violation of his fundamental rights as discussed herein above.

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20. In view of the above discussion, the above named petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) with one surety of like amount subject to the satisfaction of the learned Special Judge, South Salmara with the following conditions:

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i. That the petitioner shall co-operate in the trial of Special (N) Case No. 06/2025;

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ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

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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 Trial Court in the trial pending against the present petitioner;

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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, mobile number, and other contact details before the Trial Court;

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

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

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21. With the above observation, this bail application is accordingly, disposed

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of.

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JUDGE

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Comparing Assistant

Tozzammil Hoque Alias Tozammel Hoque v. the State of Assam

Case brief

What is this about?

What did the court decide?

Tozzammil Hoque Alias Tozammel Hoque v. the State of Assam

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