Sh. Sowab Uddin Vs The State of Mizoram R/b Commissioner to the Govt. of Mizoram, Excise and Narcotics Dept.and 2 Ors.

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Page No.# 1/8

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GAHC030005992025

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THE GAUHATI HIGH COURT

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

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Case No. : Bail Appln./40/2025

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Sh. Sowab Uddin S/o Monazir Ali @ Manajjir Ali, R/o Tukar Bazar, Patharkandi, Assam

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VERSUS

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The State of Mizoram R/b Commissioner to the Govt. of Mizoram, Excise and Narcotics Dept.and 2 Ors. Aizawl2:The Officer-in-Charge Excise and Narcotics Dept. Anti Narcotic Squad

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3:S.I Lalnunfela Excise and Narcotics Dept. Anti Narcotic Squa

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Advocate for the Petitioner : Ms. PC VanLalduhsaki

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Advocate for the Respondent : P.P./Addl.PP, Mizoram

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BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR

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JUDGEMENT & ORDER (ORAL)

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Date : 10-11-2025

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Heard Md. Ikbal Hussain Laskar, learned counsel for the applicant and Ms.

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Vanneihsiami, learned Addl. P.P for the State respondents.

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2. This bail application has been filed under section 483 of the BNSS, 2023. By the order dated 04.09.2025, the Registry was required to call for the scanned copy of the Trial Court Record and the learned Addl. P.P was directed to obtain the scanned copy of the updated Case Diary. The scanned copy of the NDPS Case No.1/2025 has been received from the court of the learned Special Judge, NDPS Act, Judicial District, Aizawl. It appears that the charge-sheet had been submitted in the case and therefore, there was no requirement of the updated CD.

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3. The FIR in this case was lodged by Sub-Inspector of Excise & Narcotic, AntiNarcotic Squad, Excise & Narcotics, Mizoram on 09.11.2025 before the Officer-inCharge, ANS, Excise & Narcotics. As per the FIR, on 08.11.2024 at around 10:00 P.M, information had received that one Chevrolet car was suspected to be transporting a big amount of heroin from Kelfang side. After stationing themselves for some time at the road side of Zemabawk East Kananthar Veng, a Chevrolet car driven by a non-Mizo was intercepted and on search, 1177 grams of heroin kept in 94 soap cases were recovered and seized along with silver color Chevrolet Beat LT vehicle bearing registration No. MZ01-H-9470. The petitioner herein was arrested in connection with the said offence. The intimation dated 09.11.2024 recorded that grounds of arrest was informed to the relatives of the arrested person. The petitioner was thereafter produced before the learned CJM, Aizawl, Mizoram on 09.11.2024 on which day, the court recorded the following order;

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“ ASSAM SCHEDULED VIDE NO. 222 HIGH COURT CRIMINAL FORM NO. 19/81 ORDER SHEET FOR MAGISTRATE

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CRL.TK.EXU/S SIGNATURE

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Received Excise & Narcotics Case No. N-201/24dated 9-11-24 U/S 21 (C)of NDPS Act 1585against aced (s) SONAB UDDIN (23) S/o MINAIR ALI TUKAR BAZAR KARINGANJ, ASSAM P/o RENABANK KANANTHAR VENG

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The said accd(s) is/are produced to my court under arrest from Excise & Narcotics custody alongwith the seized articles, viz.

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(i) 1177 Grams of Heroin kept in 94 Soap cases (ii) SilvercolorChervolet beat B/R No. MZ01H 9470 used for transportation of S/A

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Also seen the prayer submitted by the case I.O. for remand of aced(s), into Excise & Narcotics for a period of 48 hrs/Judicial custody till completion of investigation.

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Prayer is allowed and the accd(s) be remanded till11.11.24

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Also received Audio-Video record of the search and seizure and receipt he device at the JMFC certification of A.V record, has report and the drain of custody is also seen as per provision of 63 (4) BSA and 105 BNSS which is examined in court.”

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4. On later dates, the petitioner was produced before the Court of the Magistrate and on each occasion, he was remanded to judicial custody. On 09.01.2025, the complaint sheet u/s 210(1)(a)BNSS 2023 in respect of EX-N-201/2024 dated 09.11.2024 u/s 21(c) of NDPS Act, 1985 against the petitioner herein was filed. On 21.01.2025, the charge-sheet was produced before the learned trial court and cognizance was taken. After supplying the charge-sheet, accused was remanded back to judicial custody till 04.02.2025. On 04.02.2025 charges were read over and explained to him in a language known to him and he was asked if he pleads guilty or if he has any defence to make. Consequences of pleading guilty was also explained to him, the matter proceed further. The petitioner claimed trial.

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5. A petition for bail was moved before the Special Judge, NDPS Court, being B.A No. 194/2025 in connection with NDPS Case No.1/2025 which was heard on 16.07.2025 and rejected on the same day. Being aggrieved by the prolonged incarceration and also raising grievances of violation of the principles of law regarding furnishing ground of arrest and rights of bail to a person so arrested, this petition has been filed.

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6. Md. Ikbal Hussain Laskar, learned counsel appearing for the applicant has submitted that the petitioner was not given the grounds of his arrest either at the time of his arrest or when he was made to appear before the learned JMFC. No attempts were made to supply the grounds of arrest and in fact, the petitioner could not even arrange to be represented by a legal professional in the matter. A perusal of the orders passed on 9.11.2024 would reveal the state of affairs.

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7. The learned counsel for the applicant has submitted that a bare look at the information given by the arresting authority to the Officer-in-Charge would reveal that only the name of the arrested person had been divulged along with the list of articles seized. The learned counsel for the applicant submits that the record would reveal that there is no verbal or written notice given to the accused or his family members or friends regarding the grounds of arrest of the accused person.

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8. The learned counsel for the applicant has placed reliance on the law laid down by the Apex Court in the case of Vihaan Kumar -versus- State of Haryana & Another , reported in 2025 SCC Online 269 and the order dated 06.11.2025 passed in Criminal Appeal No. 2195/2025 in Mihir Rajesh Shah -versus- State of Maharashtra & Another, (Neutral citation being 2025 INSC 1288) to impress upon this Court the necessity of furnishing the grounds of arrest to the accused and to elaborate the consequences of not providing the grounds of arrest to either the arrested or to his family members or friends. The learned counsel has drawn the attention of this Court to paragraph-19, 21 & 26 of the order passed in Vihaan Kumar (supra) and the paragraph-46,49 & 56 of the order passed in Mihir Rajesh Shah (supra).

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9. The learned counsel has submitted that when the record reveals that the accused/arrested person was not intimated the grounds of arrest, it must be held to be a violation of his fundamental rights guaranteed under Article-22(1) of the Constitution of India. He also submitted that once an arrest is held to be unconstitutional due to violation of Article 22(1), the arrest itself becomes vitiated.

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Filing of charge-sheet and orders of cognizance will not validate an arrest which is per se unconstitutional where a case of violation of Article 21 and 22(1) had been made out. In this context, he has referred to paragraph-16 of Vihaan Kumar (supra). He has further submitted that when the arrest person is produced before the Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards have been made. The reason is that due to the non-compliance, the arrest itself is rendered illegal and therefore, the arrestee cannot be remanded after the arrest is rendered illegal. He has thereafter referred to the conclusion arrived at by the Apex Court at paragraph-21 of the judgment to submit that when a violation of Article-22(1) is established, it is the duty of the Court to forthwith order for release of the accused and the same would be a ground to grant bail even if statutory restrictions on the grant of bail exist. The restrictions do not affect the power of the court to grant bail when violation of Article 21 and 22 of the Constitution are established.

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10. The learned counsel has thereafter submitted that in the recent case of Mihir Rajesh Shah (supra), the Apex Court had discussed not only the law laid down in Vihaan Kumar (supra) but also the law laid down in Pankaj Bansal -versus- Union of India , reported in (2024) 7 SCC 576 and Prabir Purkayastha -versus- State (NCT of Delhi) , reported in (2024) 8 SCC 254 .

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By referring to the paragraph-46 of the judgment, the learned counsel has submitted that to achieve the intended objective of the constitutional mandate of Article-22(1) of the Constitution of India, the grounds of arrest must be informed to the arrested person in each and every case without exception and the mode of communication of such grounds must be in writing in the language that he understands. He has further submitted that in the recent judgment, the Apex Court had observed that when the statute is silent with regard to the mode, nature or the time and stage at which the grounds of arrest has to be communicated, it has to be understood that it can only be on arrest or thereafter. By referring to the paragraph-

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56, the learned counsel has submitted that in case the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it can be so done orally. However, the grounds of arrest must be communicated in writing within a reasonable time and in any case at least 2 hours prior to production of the arrestee for remand proceedings before the Magistrate. In case of non-compliance, he has submitted that the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free.

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11. Ms. Vanneihsiami, learned Addl. P.P for the State respondents has opposed the prayer and submission made on behalf of the applicant. By referring to the law laid down by the Apex Court in the case of Kasireddy Upender Reddy -versus- State of Andhra Pradesh & Others , reported in 2025 SCC Online 1228 , the learned Addl. P.P has submitted that for the purpose of satisfying Article 21 & 22(1) of the Constitution of India, it is not necessary for the authorities to furnish full details of the offence. The information should be sufficient to enable the arrested person to understand why he has been arrested. By referring to the case in hand, the learned Addl. P.P submitted that the petitioner had been caught red handed travelling with narcotics in a vehicle which was driven by him.

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12. The learned Addl. P.P has thereafter referred to the order dated 24.06.2025 passed by this Court in the case of Ubaidur Rahman -versus- The State of Assam in B.A No. 1371/2025 to impress upon this Court that when a person is caught red handed and the crime is patent to high Heaven, there is no need to explain the reason of arrest to such person. In the case of Kasireddy Upender Reddy (supra), the petitioner had concealed the alleged article on his body with a brown tape and therefore, it implies that the petitioner was aware of the contraband that he was carrying. As such, the reverse burden of proof under section 35 NDPS Act would require the petitioner to prove that he was innocent of any wrongdoing. The learned Addl. P.P has thereafter submitted that in the present case when the accused/arrested was the only person in the vehicle and the contraband articles has been seized along

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with the photograph/videograph and the vehicle, it cannot be said that the accused person was not aware of the grounds of arrest. The learned Addl. P.P has submitted that this application deserves to be rejected.

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13. The contentions raised by the learned counsel for the parties has received due consideration of this Court and the records received on requisition have been perused. The contention raised by the learned counsel for the applicant that he was not provided with the grounds of arrest in writing at any point of time and that the learned Magistrate before whom he was produced immediately after arrest did not record satisfaction regarding compliance of Article 22(1) and other mandatory safeguards is found correct when the Trial Court records are perused. Neither the arrest and seizure memo nor the information given to the officer in charge, ANS, Excise and Narcotics reveal the grounds for arresting the petitioner. There is no indication as to which relative of the petitioner had been informed either about the arrest or the grounds of arrest of the petitioner. The petitioner went unrepresented during his production immediately after his arrest. No contemporaneous records have been placed on record wherein the grounds of arrest have been noted.

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14. In view of the above findings, this Court has no hesitation to hold that the arrest of the appellant has been rendered illegal on account of non-compliance of Article 22(1) and other mandatory safeguards.

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15. The Trial in the case has started and from records, it appears that the evidence of one of the prosecution witnesses has been recorded. The petitioner is not a resident of the jurisdiction of the Trial Court and therefore, while granting bail, this Court has to balance the stringent condition of the NDPS Act, 1985, the right of the petitioner under Article 21 of the Constitution of India and also ensuring the participation of the petitioner in the trial proceedings. In the considered opinion of the Court, the balance can be achieved by directing the petitioner to be released on bail on executing a bail bond in accordance with Section 91 of the BNSS to the satisfaction

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of the Trial Court. The bail granted to the petitioner shall be further subject to following conditions:-

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(a) The petitioner shall not leave the territorial jurisdiction of learned Trial Court without prior written permission;

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(b) The petitioner shall not hamper and tamper with the evidence of the case;

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(c) 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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(d) The petitioner shall surrender his passport, if any (if not already surrendered) before the learned Trial Court.

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(e) The petitioner shall not try to contact any of the witnesses by any mode including telephone, social media etc.

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(f) The petitioner shall furnish the present residential address with proof to the learned trial Court below and shall not change the said residence without prior permission of the learned trial Court.

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(h) The petitioner shall appear before the learned trial Court below on each and every date of appearance during trial.

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16. In the aforesaid terms, this bail petition is allowed.

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JUDGE

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Comparing Assistant

Sh. Sowab Uddin v. The State of Mizoram R/b Commissioner to the Govt. of Mizoram, Excise and Narcotics Dept.and 2 Ors.

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Sh. Sowab Uddin v. The State of Mizoram R/b Commissioner to the Govt. of Mizoram, Excise and Narcotics Dept.and 2 Ors.

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