Sagar Malakar @ Sagor Malakar Vs the State of Assam

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor for the State respondent.

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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 Special (NDPS) Case No. 83/2023 [arising out of Badarpur P. S. Case No. 182/2023] registered under Sections 20(b) (ii)(C)/25/29 of NDPS Act which is pending before the Court of learned Sessions Judge, Karimganj.

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3. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the accused/petitioner is innocent and has not committed any offence as alleged in the FIR. As per the allegation, 26.085 kg of ganja was recovered from the petitioner’s possession and he was arrested on 15.07.2023, and since then he is behind the custody for 1 year, 8 months, and 19 days till date. Subsequently, the charge sheet was submitted on 21.12.2023, and to date, only four witnesses have been examined by the prosecution. In this context, he submitted that the Hon’ble Supreme Court, in various judgments, has granted bail in similar cases considering the long period of incarceration. In this regard, he relied on the judgment passed by the Hon’ble Supreme Court in Biswajit Biswas vs. The State of Assam [Spl. Leave to Appeal (Crl.) No. 16170/2024, dated 30.08.2024] wherein, the accused/petitioner was granted bail considering the period of incarceration. Further, he submits that a considerable time will be required to complete the trial, and also the I.O. got sufficient opportunity for his custodial interrogation.

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4. Mr. Choudhury, learned counsel for the petitioner, has submitted that the ground

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of arrest was not mentioned while furnishing the Arrest Memo and issuing notice under Section 50 of the Cr.P.C., which is a mandatory requirement. The noncompliance 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 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.

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5. In support of his submissions, Mr. Choudhury, learned counsel for the petitioner, has cited the following decisions:

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(i) Vihaan Kumar Vs. State of Haryana , reported in 2025 SCC OnLine SC 269.

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(ii) Prabir Purkayastha Vs. State (NCT of Delhi) , reported in (2024) 8 SCC 254.

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6. Mr. Choudhury also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 50 Cr.P.C. is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

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7. Mr. Kaushik, the learned Additional Public Prosecutor, submitted that, as on 30.04.2024, four (4) witnesses have already been examined by the prosecution since the filing of the charge sheet. Thus, the trial is progressing at a good pace, and there is no undue delay in the present case. Further, he submitted that the Hon’ble Supreme

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Court has never explicitly stated that a long period of incarceration should be consider as one year and six months, nor has it laid down any specific criteria for the same. He emphasized that the orders passed by the Hon’ble Supreme Court are based on the facts and circumstances of each case. He further submitted that there is a likelihood of the trial being completed within a reasonable period; hence, the ground of incarceration may not be applicable in this case.

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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 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.

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9. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. 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.

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10. It is the contention of the petitioner that non-communication of the grounds of

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arrest is in violation of Section 50(1) of Cr.P.C., corresponding to Section 47 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 accused/ petitioner would vitiate the arrest even if the case has been charge-sheeted.

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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:

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“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.

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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.

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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 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.”

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12. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court has held has under:

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“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

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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.”

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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 50 of Cr.P.C. 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 50 of Cr.P.C., 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.

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14. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

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“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 now a chargesheet has been filed. His submission is

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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. ”

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15. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for more than 1 (one) year, 8 (eight) months and 19 (nineteen) days from the date of his arrest and till then, the prosecution has been able to examine only 4 (four) witnesses out of 8 (eight) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

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16. In view of the entire facts and circumstances as discussed above, viz-a-viz nonmentioning of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., and also considering the period of incarceration already undergone by the accused/petitioner, i.e. 1 (one) year, 8 (eight) months and 19 (nineteen) days, as well as the considering the view expressed 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.

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17. 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 Additional Sessions Judge, Karimganj, the accused/petitioner, namely, Sagar Malakar @ Sagor Malakar, be enlarged on bail, subject to the following conditions:

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(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;

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(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;

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(iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Additional Sessions Judge, Karimganj; and

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(iv) that the petitioner shall not leave the jurisdiction of the learned Additional Sessions Judge, Karimganj, without prior permission.

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18. In terms of above, this bail application stands disposed of.

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JUDGE

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Sagar Malakar @ Sagor Malakar v. the State of Assam

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Sagar Malakar @ Sagor Malakar v. the State of Assam

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