Rijul Hoque vs The State Of Assam

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

Case No. : Bail Appln./2100/2024

RIJUL HOQUE S/O- SIRAJUL HOQUE, R/O- VILLAGE MULLAPARA, P.S- MANGALDAI, DIST- DARRANG, ASSAM

VERSUS

THE STATE OF ASSAM REP BY THE PP ASSAM

Advocate for the Petitioner : NIMISH MAHAJAN, MR. D BORA,MR. P K DAS,MR. A CHAUDHURY

Advocate for the Respondent : PP, ASSAM,

BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI

ORDER

Date : 07.04.2025

Heard Mr. N. Mahajan, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State.

2. By this second bail application filed under section 483 of the Bharatiya Page No.# 2/7

Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Rijul Hoque, has prayed for bail in connection with Spl(N) Case No. 10/2024 (arising out of Sipajhar P.S. Case No. 323/2023) under Section 22(C) of NDPS Act, 1985, pending in the court of learned Special Judge, Darrang, Mangaldai.

3. The prosecution case, in brief, is that on 03.10.2023, an FIR has been lodged before the Officer-in-Charge of Siphajhar Police Station, alleging inter alia that on 02.10.2023, at around 7:50 p.m., the officer-in-charge received a secret information regarding an Alto car (bearing registration No. AS-01-JC- 6604) carrying a large quantity of contaminated drugs for sale. The vehicle was reportedly traveling from Mangaldai towards Guwahati. However, inside the Ghorabandha Petrol Pump, the vehicle was spotted, but the driver and occupants of the vehicle fled away. Upon searching the vehicle, about 36,576 suspected Yaba tablets were recovered from a secret chamber of the vehicle and the same was seized along with the vehicle.

4. The learned counsel for the petitioner has submitted that the petitioner has been languishing in judicial custody for more than one year six months since his arrest on 08.10.2023. It is also submitted that after completion of investigation, charge sheet has been submitted vide C.S. No. 31/2024 dated 12.03.2024, though charge has not been framed in this case till date. It is further submitted that the learned trial court granted bail to one of the co- accused in this case.

5. The learned counsel for the petitioner has also submitted that the petitioner is no way involved in the alleged offence. It is an admitted fact that the accused/petitioner had purchased the aforesaid vehicle and in this regard, an agreement was also executed on 06.07.2019 between the accused/petitioner and the registered owner of the vehicle namely, Munna Kaur. Thereafter, the Page No.# 3/7

petitioner sold the said vehicle to one Haider Ali and only on the basis of the statement of the original owner of the said vehicle i.e. Munna Kaur, the accused/petitioner was arrested. Nothing has been recovered from the conscious possession of the accused/petitioner. Moreover, the petitioner was never present in the place of occurrence at the relevant time.

6. Further submission of learned counsel for the petitioner is that the Hon'ble Supreme Court in the case of Pankaj Bansal vs. Union of India, reported in 2023 SCC Online (SC) 1244 has held that the written grounds of arrest must be furnished to the arrested person as a matter of course and without exception, if the same is not complied with, the arrest would be in violation of Section 19(1) of the PMLA Act, 2002 consequently the arrest, subsequent remand of the arrested person cannot be sustained.

7. It is also submitted that this proposition of law has been expounded by the Hon'ble Supreme Court in the case of Prabir Purkayastha vs. State (NCT of Delhi), reported in 2024 SCC Online (SC) 934, wherein it has been categorically held that the law laid down in the case of Pankaj Bansal (supra) would be squarely applicable in cases under the UA(P) Act or for that matter any other offence(s). The accused has a fundamental and 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 and non supply of written grounds of arrest to the arrested person would vitiate the arrest even if the case has been charge sheeted.

8. The learned counsel for the petitioner has also referred another case law vide Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 SCC Online (SC) 269, wherein it has been held that not informing the arrested person of the Page No.# 4/7

grounds of arrest would amount to a violation of fundamental right guaranteed under Article 22(1) of Constitution of India and this alone would be a ground to grant bail to the accused even if statutory restrictions exist against the grant of bail. According to the learned counsel for the petitioner, in the instant case, the petitioner was never supplied with the full particulars of the offence for which he was arrested or other grounds of arrest, at the time of his arrest, which is in violation of Section 47(1) of BNSS corresponding to Section 50(1) of Cr.P.C. rendering the arrest and the subsequent remand to the accused/petitioner invalid. Accordingly, learned counsel for the petitioner submits that in view of the aforesaid irregularities occurred during investigation, the petitioner may be enlarged on bail.

9. Per contra, Mr. Kaushik, learned Additional Public Prosecutor for the State has submitted that commercial quantity of contraband items were recovered from the conscious possession of the petitioner. As the commercial quantity of contraband items are involved in the instant case as such, the embargo under Section 37 of NDPS Act will come into play. Hence, the Additional Public Prosecutor has opposed in granting bail to the petitioner. However, learned Additional Public Prosecutor has admitted that the grounds of arrest have not been mentioned in the arrest memo or the Section 50 notice issued to the petitioner.

10. I have considered the submission of the learned counsel for the parties and I have also perused the trial court record.

11. Section 47 of BNSS (Section 50 Cr.P.C)- Person arrested to be informed of grounds of arrest and of right to bail.-(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such Page No.# 5/7

arrest.

12. Section 48 of BNSS (Section 50A Cr.P.C.)- Obligation of person making arrest to inform about arrest, etc., to relative or friend- (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district.

13. Coming to the case in hand, notice issued to the petitioner under Section 50 Cr.P.C vide Sipajhar P.S. Case No. 323/2023 which is reproduced below-

"You are hereby informed that, you are under arrest in connection

with above reference case. So, you are forwarded to the Hon'ble Court. You may submit petition before Hon'ble Court for your bail."

14. Notice issued to the representative of the accused i.e. Sirajul Hoque, S/o Lt. Sidique Ali under Section 50A Cr.P.C. in connection with Sipajhar P.S. Case No. 323/2023 is as follows -

"You are hereby informed that the following person is appended in connection with Case No. & Penal section of Law referred below-

Name & address of the arrested person- Rijul Hoque (30) S/o Sirajul Hoque, vill.- Mullapara, Nagarbarhi P.S. Mongaldoi, Dist.- Darrang, Assam.

Case No. & Penal Sections of Law, GDE Reference & Circumstances- Sipajhar P.S., C/No-323/2023 under Section 22(c) of NDPS Act.

Date and time of arrest- 08.10.2023 at 2.45 p.m. Place of arrest- Sipajhar P.S. Signature of the arresting officer- SI(P) Ranjan Tamuli PS/OP- Sipajhar P.S. Page No.# 6/7

Date & Time- 08.10.2023 Signature of the addressee- Sirajul Hoque."

15. From the aforesaid particulars, as mentioned in Section 50 and 50 A notice, it does not disclose any grounds of arrest being informed to the petitioner or his relative in connection with Sipajhar P.S. Case No. 323/2023.

16. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Subhash Sharma, it was held as follows-

"Once a court, while dealing with a bail application, finds that the

fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. Therefore, when arrest is illegal or vitiated, bail cannot be denied on the grounds of non-fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA."

17. Situated thus, the settled principle of law is that an arrested person must be informed of the grounds for his arrest and detention which is mandatory in nature. Article 22 safeguards the individual against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. In the instant case, there is no reflection in Section 50/50A Cr.P.C. notice served to the petitioner and his relative Sirajul Hoque dated 08.10.2023 that the accused petitioner was informed about the grounds for his arrest in connection with Sipajhar P.S. Case No. 323/2023. Under such backdrop, this Court by following the observation of Page No.# 7/7

the Hon'ble Supreme Court as above, is inclined to grant bail to the petitioner.

18. Accordingly, the petitioner, named above, shall be released on bail in connection with Spl(N) Case No. 10/2024 (arising out of Sipajhar P.S. Case No. 323/2023) under Section 22(C) of NDPS Act, 1985, on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties of the like amount, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Special Judge, Darrang, Mangaldoi, Assam.

The direction for bail is further subject to the conditions that the petitioner:

(a) shall not leave the territorial jurisdiction of learned Special Judge, Darrang, Mangaldoi, Assam without prior written permission from him/her;

(b) shall regularly attend the trial court and cooperate with the court for early disposal of the trial; and

(c) 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 them from disclosing such facts to the Court.

19. It is pertinent to mention here that the findings of this court that the arrest of the petitioner stands vitiated will not affect the merits of the pending case.

20. The bail application is disposed of accordingly.

JUDGE

Comparing Assistant