Ismail Hussain Vs the State of Assam

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GAHC010056992025

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

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Case No. : Bail Appln./853/2025

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ISMAIL HUSSAIN S/O ABDUR KADER ALI @ ABDUL KADER ALI VILL- MANULLAPARA (BHEDAMARI) P.O.MANULLAPARA P.S. SOUTH SALMARA DIST. SOUTH SALMARA MANKACHAR, ASSAM PIN- 783135

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VERSUS THE STATE OF ASSAM REP BY THE LEARNED PP ASSAM

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Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN

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Advocate for the Respondent : PP, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

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ORDER

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06.05.2025

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Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also heard Mr. K.K. Das, learned Addl. Public Prosecutor for the State respondent.

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2. This is an application under Section 483 of BNSS, 2023 for granting regular bail to the petitioner, i.e. Ismail Hussain, who has been arrested on 15.12.2024 in connection with South Salmara P.S. Case No. 210/2024 (GR. No. 512/24) registered under Section 22(a)/22(c) of NDPS Act.

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3. The brief facts of the case is that on 15.12.2024, an FIR was lodged alleging inter-alia that on 14.12.2024, the jurisdictional Police Station upon receiving an information that a drug peddler namely Ismail Hussain, i.e. the petitioner herein, is running a nexus of NDPS items alongwith his associates from his residence for a long time, the Police personnel proceeded to the location and upon reaching, a search, as per law was conducted in the residence of the petitioner, wherein at the time of search, the petitioner was found to be at his house. It is further alleged that upon searching, the following items have been recovered from the house of the petitioner:-

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(i) One black colour plastic polythene which was concealed under the bed inside the room of the petitioner.

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(ii) Total cash Rs. 2460/- from his pocket

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(iii) One Vivo mobile phone belonging to the petitioner from his possession and

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(iv) One Bajaj Pulser 125CC Bike Regd. No. AS-34-2071 alongwith key.

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Accordingly, the aforementioned items were opened and counted in presence of the witnesses and 24 numbers of strips containing blue colour capsule and each strip containing 24 numbers of capsules namely Tramadol

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Hydrochloride was found. Accordingly, a case was registered. Thereafter, the petitioner was arrested on 15.12.2024 in connection with the aforesaid case and produced before the jurisdictional Chief Judicial Magistrate on 15.12.2024 and since then, he is in custody.

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4. Mr. M.R. Khandakar, learned counsel for the petitioner submits that the arresting authority while arresting the petitioner has not informed the grounds of arrest to him and as such, the Fundamental and Constitutional Rights guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioner is entitled to be released forthwith.

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5. Per contra, Mr. K.K. Das, learned Additional Public Prosecutor by vehemently opposing the prayer of bail submits that notice issued under Section 47 of BNSS, 2023 indicates that information as regards grounds of arrest has been informed to the petitioner at the time of his arrest.

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6. I have considered the submissions advanced by the learned counsels for both the parties and also perused the materials available on record.

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7. The primary ground urged in this bail application is as regard noncompliance of the Constitutional and Fundamental Right of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Apt to refer to Article 21 and 22(1) of the Constitution of India, which reads as hereunder:-

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“ 21. Protection of life and personal liberty .—No person shall be deprived of his life or personal liberty except according to procedure established by law.

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22. Protection against arrest and detention in certain cases .—(1) No person who is arrested shall be detained in custody without being informed,

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as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

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8. Perusal of the aforesaid provision, it is apparent that an arrestee has a Constitutional and Fundamental Right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest.

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9. In the present case, apt to refer to the notices issued to the petitioner under Section 47 of BNSS, 2023, which reads as hereunder: -

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“ NOTICE

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U/S-47 of BNSS, 2023

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Ref.:- SSM P.S. Case No. 210/24 u/s-22(a)(c) NDPS Act

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To,

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Ismail Hussain (26) S/O - Abdul Kader Ali Vill.- Manullapara (Bhedamari) P.S.-South Salmara Dist.- South Salmara Mankachar (Assam)

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This is to inform you that you have been arrested in connection with above case reference and sufficient evidence found against you of your involvement. Hence needed to arrest and forwarded to the Hon’ble Judicial Custody.

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Received copy:

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LTI of Ismail Hussain

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Investigated Officer

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Sd/- Illegible Of KBD OP

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Dtd. : 15/12/24”

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10. Perusal of the aforesaid notice indicates that no facts whatsoever constituting the grounds of arrest is reflected in the said notice except that he has been arrested in connection with the case under reference.

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11. Apt also to refer to the memo of arrest, which reads as hereunder: -

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“ ARREST MEMO

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WRIT PETITION (Original) No. 539 of 1986 and 592 of 1997

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Name of the Accused:- Ismail Hussain (29)

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S/o Abdul Kader Ali

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Village– Manullapara (Bhedamari) P.S. South Salmara

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Dist.-South Salmara Mankachar

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(Assam)

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Case Reference : South Salmara PS Case No. 210/24 u/s 22(a)(c) NDPS Act

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Ground of arrest : As per Accused forwarding report

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Signature of with friend/relatives : Illegible

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Signature of arrestee : L.T.I. of Ismail Hussain

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Date & Time of arrest in the place : Kharuabandha OP on 15.12.2024 at

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Signature of Investigation officer

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Sd/- Ilegible Of KBD OP Date : 15/12/24”

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12. Perusal of the memo of arrest also indicates that no information as regards the grounds of arrest is mentioned.

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13. It appears from the materials placed before this Court that there is no material available in the Case Diary to indicate that the grounds of arrest has been informed to the petitioner at the time of his arrest.

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14. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will be a violation of the Constitutional and Fundamental Rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established.

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15. Reference is made to the decision of the Apex Court in the case of Vihaan Kumar Vs State of Haryana and Anr ., reported in 2025 SCConline SC 269 . Paragraph 21 of the aforesaid decision is reproduced hereunder for ready reference:

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“21. Therefore, we conclude:

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a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

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b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

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c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirernents of Article 22(1);

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d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

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e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

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f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.”

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16. Reading of the aforesaid judgment, it is abundantly clear that the information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts of the case is imparted and communicated effectively to him and non compliance of the same will be a violation of the fundamental rights of the accused guaranteed under Artice 22(1) of the Constitution of India.

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17. In the present case, there is nothing in the case diary/case record/materials available on record to indicate that the ground of arrest has

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been communicated to the petitioner. Therefore, it is absolutely clear that the grounds of arrest was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest of the petitioner stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioner. Therefore, further detention of the petitioner in the custody is totally unjustified.

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18. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, the petitioner named above, shall be released on bail in connection with the aforementioned case on furnishing of a bail bond of Rs. 50,000/-(Rupees Fifty Thousand), with two sureties of like amount, provided that one surety has to be a Government Servant, to the satisfaction of the learned Special Judge, South Salmara, Mankachar under the conditions: -

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(a) shall not leave the territorial jurisdiction of jurisdictional Special Judge, under the NDPS Act, without prior written permission from him;

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(b) shall deposit his Passport/visa, etc if any, in the Court of the learned Special Judge;

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(c) shall not hamper with the investigation, or tamper with the evidence of the case;

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(d) 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

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officer; and

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(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.

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19. In terms of the above, the bail application stands disposed of.

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20. Return the Case Diary.

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JUDGE

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Ismail Hussain v. the State of Assam

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Ismail Hussain v. the State of Assam

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