Debojit Debnath Alias Debajit Debnath Alias Babai Vs the Union of India

Heard learned Counsel Mr. N.N.B.Choudhury for the petitioner Debojit Debnath @ Debajit Debnath @ Babai who has filed this application under Section 483 of the BNSS, 2023 with prayer for bail as he is behind bars since 25.01.2025 in connection with NDPS Case No. 167/2025 corresponding to NCB

¶17

Page No.# 2/8

¶18

Guwahati Crime No.01/2025 under Section 8 (c) r/w 21 (c) /29 of the NDPS Act.

¶19

Heard Ms. M. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel for the NCB.

¶20

The trial court records is placed before the Court.

¶21

It may be mentioned herein that earlier bail application of the present petitioner in Bail Application No.947/2025 was rejected by this Court vide order dated 21.05.2025.

¶22

The allegation in the case in brief is that on the intervening night of 23^rd and 24^th January, 2025, the NCB, Guwahati has recovered and seized 335 grams of suspected heroin at platform no. 6 of Guwahati Railway Station from the possession of one lady namely Rudrani Bhattacharjee.

¶23

The petitioner is in judicial custody for 306 days since he was arrested on 25.01.2025.

¶24

It is submitted on behalf of the petitioner that the contraband was not seized from his possession. The petitioner is an engineering student and he is not involved in any case of transportation of contraband. His entire career will be damaged if he is incarcerated for a prolonged period. It is further submitted that no notice under Section 48 of the BNSS, 2023 has been issued to any of the relatives of the petitioner although earlier bail prayer was rejected as proper notice under Section 47 of the BNSS has been served. This is a good ground to grant bail as the petitioner’s right to personal liberty has been curtailed.

¶25

The petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Vihaan Kumar vs. The State of Haryana & anr. reported in

¶26

Page No.# 3/8

¶27

(2025) 5 SCC 799, wherein it has been held in paragraph nos. 41 and 42 as quoted herein below:

¶28

“41. 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 incorporated in the 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.

¶29

The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.”

¶30

Page No.# 4/8

¶31

The petitioner has also relied on the decision of this Court in the case of National Investigation Agency vs- Thangminlen Mate @ Lenin Mate passed in Criminal Appeal No.234/2025 wherein vide order dated 21.08.2025, a Division Bench of this Court has held in paragraph nos. 14, 16 and 17 as quoted herein below:

¶32

“14. In the present case, the appellant has not been able to prove that they have complied with the requirement of Article 22(1), insofar as the communication of the grounds of arrest of the accused respondent had been communicated to his family members.

¶33

¶34

Keeping in view the decision of the Supreme Court in the case of State of Karnataka Vs. Sri Darshan Etc.(Supra), we are of the view that the non furnishing of the grounds of arrest in writing, to the family/relatives of the arrested person immediately, cannot be said to be illegal or violative of Article 22(1) of the Constitution of India and section 47 of the BNSS. However, the grounds of arrest have to be furnished within a reasonable time. In the present case, the accused/respondent was arrested on 19/05/2025 and till the date of filing of the written objection by the appellant in Bail Application No. 486/2025 i.e. on 02/06/2025, the brother/relatives of the accused/respondent had not been provided a copy of the grounds of arrest. This delay of approximately 18 days, in our view, is beyond reasonable time, keeping in view the decision of the Supreme Court in Vihaan Kumar (Supra). As such, the requirement of making the relatives of the accused/respondent aware of the grounds of arrest of an accused not having been made within a reasonable time, it can be said that the said delay could make the arrest illegal in terms of Vihaan Kumar (Supra).

¶35

We have perused the records that have been brought by the appellant. Though, there is signature in the photocopy of the Arrest Memo of the

¶36

Page No.# 5/8

¶37

accused/respondent, which the appellant say, is the signature of the brother of the accused, we find that there is no date affixed to the said signature. On the Page No.# 9/10 other hand, all the other signatures in the Arrest Memo, which have been signed by the witnesses, the Arrestee and the Officer making the arrest, all have dates. There is nothing to prove that the grounds of arrest had been received by the brother of the accused respondent on 20.05.2025. In that view of the matter, the submissions made by the learned counsel for the appellant that the brother of the appellant had been given a copy of the Arrest Memo on 20/05/2025 is not proved and the said submission does not inspire our confidence. Furthermore, as stated earlier, the appellant in their written objection to the Bail Application filed before the learned Special Court, NIA, Assam, had specifically taken a stand that the grounds of arrest of the accused/respondent had been given to the father of the accused/respondent. This stand has, however, been completely changed in the present appeal, which has been filed only on 02/06/2025.”

¶38

Relying on the aforementioned judgments, it is submitted by the learned counsel for the petitioner that the grounds of arrest have not been mentioned to any of the relatives of the petitioner and the petitioner’s fundamental right has been infringed.

¶39

Reverting back to the instant case, it is observed that there is no evidence that the grounds of arrest have been communicated to the relatives of the petitioner. The memorandum of arrest reveals that the petitioner refused to affix his signature on the memorandum of arrest but the intimation of his arrest was given to his mother and advocate. In the instant case too, there is no evidence of any of the relatives of the petitioner receiving any information of the arrest of the petitioner. No signatures have been taken down while the information of the petitioner’s arrest was intimated to the petitioner’s relative or his advocate. A

¶40

Page No.# 6/8

¶41

Division Bench of this Court has held in paragraph 15 of the case of Thangminlen Mate @ Lenin Mate (supra) as quoted herein below:

¶42

“15. In Sri Darshan (supra), the Supreme Court had negated the submission of the learned counsel for the accused respondent that an arrest would be illegal if the grounds of arrest were not furnished immediately, thereby violating Article 22(1) of the Constitution and Section 50 Cr.P.C, now Section 47 of the BNSS. However, in the case of Vihaan Kumar (supra), the decision of the Supreme Court therein is to the effect that the grounds of arrest has to be in writing and has to be furnished to the relatives of the arrested person. Thus, there appears to be dichotomy of views in the different decisions of the Supreme Court. However, keeping in view the judgment of the Constitution Bench of the Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, wherein it was held that if there are conflicting decisions of equal Benches of the Supreme Court, the earlier decision should be followed by the High Courts, we are bound to follow the earlier decision of the Supreme Court, which in this case would be Vihaan Kumar (supra). Thus, keeping in view the decision of the Supreme Court in Vihaan Kumar (Supra), we are of the view that the grounds of arrest in writing would have to be made known, not only to the arrested person, but also to the family/relative of the arrested person.”

¶43

Ms. Deka on behalf of learned Standing Counsel has raised serious objection stating that the Case Diary and the arrest memo clearly reveals that the petitioner deliberately refused to affix his signature in the arrest memo and then his mother and his advocate was informed about the incident. Thus, this is not a case where

¶44

grounds of arrest has not been communicated to the relatives of the petitioner. Earlier, the petitioner’s prayer for bail was rejected as it was held by this Court

¶45

Page No.# 7/8

¶46

that grounds of arrest were not intimated to the petitioner. It is true that the arrest memo clearly reflects that the petitioner has refused to affix his signature on the arrest memo and his mother and advocate was apprised about the petitioner’s arrest, but no signatures were taken. I have relied on the decision of this Court in Thangminlen Mate @ Lenin Mate (supra) , and it is hereby held that the petitioner is entitled to bail as grounds of arrest has not been furnished to the petitioner’s relatives, be it in writing or verbally. Thereby, the petitioner is enlarged on bail of Rs.1,00,000/- (Rupees One Lac only) with 02(two) local sureties of like amount to the satisfaction of the learned Trial Court subject to the following conditions:

¶47

i) That the petitioner shall refrain from such activities with which he is alleged,

¶48

ii) That the petitioner shall co-operate with the trial,

¶49

iii) That the petitioner shall not jump the bail, and

¶50

iv) That the petitioner shall not tamper with the evidence.

¶51