Babu Ahmed Barbhuiya Vs the State of Assam

Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. B. Sharma, 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 Silchar P.S. Case No. 1149/2024, under Sections 22(c)/27-A/29 of the NDPS Act, 1985.

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3. Case Diary has been received. Perused the same. Heard both sides.

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4. It is submitted by Mr. Bora, learned Senior Counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. He got arrested in connection with this case only on the basis of the statement of the co-accused recorded under Section 67 of NDPS Act. However, it is the settled position that the statement of the co-accused or the voluntary statement recorded under Section 67 of the NDPS Act is not admissible at the time of trial or that cannot be the basis for conviction as laid down by the Hon’ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1] , wherein it has been held that the statement of the co-accused person recorded under Section 67 NDPS Act is not tenable in the eye of law and it cannot be the basis of the conviction.

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5. Mr. Bora, learned Senior Counsel, by filling an additional affidavit bringing on record the Notices under Sections 47 & 48 of BNSS, further submitted that while arresting the present petitioner, the grounds of arrest were not mentioned in the Notices issued to him as well as his family members under Sections 47 & 48 BNSS, which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the accused/petitioner was arrested on 26.12.2024, but due to nonmentioning of grounds of arrest in the Notices under Sections 47 & 48 BNSS,

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the arrest and the remand itself is illegal. 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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6. In this context also, Mr. Bora, learned Senior Counsel for the petitioner, 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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7. Mr. Bora, learned Senior Counsel, 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, nonmentioning of grounds of arrest while issuing the Notices under Sections 47 & 48 BNSS 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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8. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard

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that there are sufficient incriminating materials in the Case Diary and in pursuant to Order dated 27.03.2025, the State has already filed affidavit stating that in compliance of Section 47 & 48 BNSS, the concerned I.O. had issued Notices to the accused/petitioner and to his father. However, Mr. Sharma submitted that admittedly the grounds of arrest were not mentioned in the Notices under Sections 47 & 48 of BNSS. He further submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation. Further he submitted that he submitted that the case of Tofan Singh (supra) does not bar the Investigating Agency to proceed with the investigation on the basis of statement of the co-accused or on the basis of the statement recorded under Section 67 NDPS Act.

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9. Further, Mr. Sharma submitted that since the case falls under the category of commercial quantity, the 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 Diary, it cannot be said that the present petitioner is innocent and 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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10. After hearing the submissions made by the learned counsels for both

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sides, I have also perused the Case Diary and the annexures filed along with the petition, more particularly, the Notices issued to the present accused/petitioner as well as to his family members under Sections 47 & 48 of BNSS. It is accordingly seen that while issuing the said Notices, 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 Notices. 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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11. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Sections 47 & 48 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 chargesheeted.

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12. 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 Nos. 19, 21 & 48 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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13. 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 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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14. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notices issued to the present accused/petitioner under Sections 47 & 48 of BNSS 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 Sections 47 & 48 of BNSS, 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 his 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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15. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the investigation is still under progress. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Notices issued to the present accused/ petitioner under Sections 47 & 48 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

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16. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/(Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Cachar, Silchar, the accused/petitioner, namely, Babu Ahmed Barbhuiya, 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 Special Judge, Cachar, Silchar; and

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(iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Cachar, Silchar, without prior permission.

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

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JUDGE

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Babu Ahmed Barbhuiya v. the State of Assam

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Babu Ahmed Barbhuiya v. the State of Assam

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