Smt. Malsawmkimi Vs The State of Mizoram and 2 Ors.

2. This is an application files u/s 483 of BNSS r/w section 37 of the ND&PS Act, 1985 for the release of the accused/petitioner on bail on her arrest on 06.07.2024, for the seizure of 226 phials of Cough Syrup

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containing Codeine Phosphate i.e., 22.600 kgs branded COFF - TRIPP and charged u/s 22(c) of the ND&PS Act in Excise Case No. EX – N – 122/2024.

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3. Mr. S. Vanlalhriata, learned counsel for the petitioner submits that the sole ground for praying for the release of the accused/petitioner on bail is that at the time of the arrest of the petitioner, the mandatory requirement of being provided with the grounds of arrest was not provided to her. The learned counsel led this Court to the Seizure and Arrest memo, a copy which was furnished to the accused/petitioner. The learned counsel submitted that on perusal of the Seizure and Arrest memo, it is seen that though the Seizure and Arrest memo, mentions about the recovery of 226 phials of Cough Syrup containing Codeine Phosphate i.e., 22.600 kgs branded COFF – TRIPP, however, the grounds of her arrest has not been mentioned. He submitted that it is not known as to under what provisions of law the accused/petitioner has been charged and her arrest thereof.

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He further submitted that since the seize articles was 226 phials of Cough Syrup containing Codeine Phosphate i.e., 22.600 kgs branded COFF – TRIPP, the accused could be charged with under the Drugs & Cosmetics Act, or the ND & PS Act, however, since the charged section was not mentioned in the Seizure and Arrest memo furnished to her, she has not able to defend herself properly by engaging an Advocate, since she did not know whether she was arrested and charged under the ND&PS Act or the Drugs & Cosmetics Act, 1940.

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4. The learned counsel further submitted that by not mentioning the grounds of arrest in the Seizure and Arrest memo, the Fundamental Rights of the accused/petitioner guaranteed under Article 22 of the Constitution of

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India has been duly violated. He submits that the same right has also been incorporate in section 47 of the BNSS, 2023. The learned counsel also submitted that the petitioner was innocent of committing any offense since she had the license to procured the seize 226 phials of Cough Syrup as she was the owner of a medical store.

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5. The learned counsel has relied on the Judgment of the Apex Court in Vihaan Kumar VS. State of Haryana & Anr. reported in (2025) 5 SCC 799 and the Judgment of a coordinate bench of this Court in Gurmel Singh Vs. State of Assam in Bail Appln. /1229/2025, wherein the accused was granted bail for non compliance with Section 47 of the BNSS being a violation of the fundamental rights guaranteed under Article 21 and 22 of the Constitution of India.

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6. Mrs. Linda. L. Fambawl, learned Public Prosecutor on the other hand has strongly objected to the release of the accused/petitioner on bail. The learned Public Prosecutor submitted that the accused/petitioner had approach the Trial Court on different occasions for release on bail, and the learned Trial Court vide its Order dated 16.07.2025, in Bail Appln. No. 170 of 2025 had observed that the Trial Court had rejected the bail applications on previous two occasions and further observes that though the grounds of arrest was not given to the accused/petitioner in writing, however, the seizure and arrest memo exhibited as exhibit P – 1 specifically stated the date, time and place of seizure and arrest and the detailed particulars of the SA seized from the accused/petitioner was mentioned in the seizure and arrest memo which is duly counter signed and received by her, for the said reasons bail was not granted to the accused/petitioner by the learned

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Trial Court.

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The learned counsel thus, submits that since all the details of the seize article was provided in the Seizure and Arrest memo, the accused/petitioner was able to defend herself properly by engaging an Advocate. The learned Public Prosecutor submitted that there no grounds at this stage to release the accused/petitioner on bail since the seize articles were seize from her residence and therefore she was likely to be convicted u/s 22(c) of the ND&PS Act.

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7. I have considered the submissions made by the learned counsels for both the parties. I have also perused the Seizure and Arrest memo furnished to the accused/petitioner. It is seen that the Seizure and Arrest memo provides the date on which the seize articles were seize i.e., on 06.07.2024 at 5:25 p.m at Chhinga Veng, Section ‘C’, which was recovered from inside the residence of the accused/petitioner and therefore the accused/petitioner was arrested on the same date in the presence of reliable civilian witnesses the intimation of her arrest was given to her husband. The seize articles were mentioned as phials 226 of Cough Syrup containing Codeine Phosphate i.e., 22.600 kgs branded COFF – TRIPP. Thus, it is seen that all the details of the seizure of the seize articles was clearly mentioned in the Seizure and Arrest memo, however, there is no mention as to what section of law has the accused/petitioner been charged with which led to her arrest. It is seen that the seize articles are 226 phials of Cough Syrup containing Codeine Phosphate i.e., 22.600 kgs branded COFF - TRIPP therefore there is also option of the arresting authority to charged the accused/petitioner under the appropriate section under the

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Drugs & Cosmetics Act, 1940 and also under the ND&PS Act.

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Accordingly, this Court finds that there is substance in the submission made by the learned counsel for the accused/petitioner that the grounds of arrest has not been fully disclosed to the accused/petitioner, wherein there is an option for the arresting authority to charge the accused/petitioner under the Drugs & Cosmetics Act or under the ND&PS Act.

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8. This Court find it appropriate to refer to the Judgment of the Apex court in Vihaan Kumar (Supra) wherein it had held that:-

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‘19. 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

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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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9 . In view of the above findings and discussions, this Court finds it appropriate to grant bail to the accused/petitioner. The accused/petitioner is thus granted bail with a bail bond of Rs. 1,00,000 (Rupees One lakh) only, and with 1 (one) reliable surety with a bond of the like amount, who shall be to the satisfaction of the learned Trial Court. The learned Trial Court may also imposed conditions found appropriate to ensure that the accused/petitioner does not abscond, delay or hamper the trial of the case while released on bail.

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10. Accordingly, Bail Application No. 37 of 2025 stands allowed and disposed of as above.

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JUDGE

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Comparing Assistant

Smt. Malsawmkimi v. The State of Mizoram and 2 Ors.

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Smt. Malsawmkimi v. The State of Mizoram and 2 Ors.

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