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Judgment
Biswajit Palit, J
This bail application under Section 483 of BNSS, 2023 is filed for releasing the accused in custody namely, Samim Uddin Purkayastha on bail in connection with Ambassa PS case No.2025 ABS 003 registered under Sections 22(c)/25/29 of NDPS Act.
Heard Learned Senior Counsel, Mr. Subrata Sarkar assisted by Learned Counsel, Mr. Arpan Jamatia appearing on behalf of the accused in custody. Also heard Learned Addl. P.P., Mr. Rajib Saha appearing on behalf of the respondent-State.
Yesterday the matter was heard in-part and the matter was fixed today for production of case diary by the I.O before this Court. But today Learned Addl. P.P. submitted that the I.O. has failed to produce the case diary despite of the intimation. As such, this Court find no scope to adjourn the case furthermore as because the accused is languishing in jail.
Yesterday in course of hearing of argument, Learned Senior Counsel, Mr. Sarkar drawn the attention of this Court that on the basis of an F.I.R. laid by one Joy Thapa, S.I. of Ambassa PS on 10.02.2025 in reference to Ambassa PS GD entry No.20 dated 10.02.2025 this case was registered.
Initially, in this case one Sibajul Hossain and Sairul Islam were taken into custody and produced before the concerned Court below. Thereafter, in course of investigation and on the basis of interrogation report of other co-accused person, the present accused person namely, Samim Uddin Purkayastha was taken into custody. The present accused person is languishing in jail on and from 09.04.2025. Learned Senior Counsel, Mr. Sarkar at the time of hearing of argument based his submission only on two grounds.
Learned Senior Counsel first of all drawn the attention of this Court that the accused in custody is not F.I.R. named and no contraband items were seized from his possession and only based on the interrogation report of the co-accused person, he was taken into custody. Learned Senior Counsel further drawn the attention of this Court referring the compliance report dated 27.02.2025 (Annexure-J), compliance report dated 04.03.2025 (Annexure-K), compliance report dated 18.03.2025 (Annexure-L), compliance report dated 25.03.2025 (Annexure-M), compliance report dated 29.03.2025 (Annexure-N) submitted by I.O. and further submitted that in all the aforesaid compliance reports nowhere it was mentioned by the I.O. a single line showing implication of the accused in custody with the alleged crime and it was only revealed from the statement of the master mind of the alleged crime, Md. Ansar Uddin Laskar. From those compliance reports only the name of one Billal Miah, Saddam Hosain, Saikul and Kader were revealed. So, Learned Senior Counsel submitted that the present accused in custody was in no way involved with the alleged crime. Learned Senior Counsel again drawn the attention of this Court to the interrogation report of the accused person which is also annexed with the bail application wherein in para Nos.7 and 8 the said accused narrated following facts:
“(7) During his interrogation it's reveals that the the prime accused persons namely-Saikul Uddin Laskar, Ansar Uddin Laskar & Sajahan Alom Laskar were belongs to same village i.e- Jalal pur, Part-1, PS- Kalain Dist- Cachar and all of them were relative to each other. And the another A/P namely- Abdul Kader S/O- Abdul Jabber belongs to another village i.e- Khelma Part-ii, PS- Kalain, which is approx 8 to 9 KM away from his house Jalalpur Part-i. But he knows the Abdul Kader as a engaged Driver of the seized Vehicle and moreover Abdul Kader married to one lady from his village of Jalal pur Part-l in this connection he knows to Abdul Kader as a driver and most of the time Abdul Kader visited to his work shop for the purpose of Car repairing/servicing.
(8) During interrogation the remanded A/P also confessed his guilty that he has modified the Fuel Tanker of the seized vehicle bearing Reg No- AS01HC6438 as per request of the prime accused persons namely Saikul Uddin Laskar, Ansar Uddin Laskar, Abdul Kader & Sajahan Alom Laskar for the monetary benefit but he was unaware regarding the concealment of the drugs (YABA Tablets) in the said modified fuel tank though it was modified by him.”
So, according to the Learned Senior Counsel excepting the interrogation report of the accused himself, the I.O. could not collect a single material to substantiate that the present accused was in any way involved with the alleged crime. Learned Senior Counsel in his first round of argument urged for releasing the present accused on bail in any condition.
In the second round of argument, Learned Senior Counsel drawn the attention of this Court to the arrest memo (Annexure-P) wherein in „column No.5 i.e. Grounds of arrest‟ nothing was mentioned as to whether the I.O. informed about the grounds of arrest or not which is violative of Article 22 of the Constitution of India. In support of his contention Learned Senior Counsel referred the provision of Section 45 of PMLA Act, 2002, the Unlawful Activities (Prevention) Act, 1967 as well as Section 37 of the NDPS Act. Learned Senior Counsel further referred some citations of the Hon‟ble Supreme Court of India in support of his contention that the I.O. has miserably failed to comply the „grounds of arrest‟ and thus violated the principle of law laid down by the Hon‟ble Apex Court. Finally, Learned Senior Counsel drawn the attention of this Court that for non-compliance of the principle of law laid down by the Hon‟ble Apex Court, the present accused also deserves to be released on bail in any condition.
In this regard, Learned Senior Counsel referred one citation of the Hon‟ble Apex Court reported in (2024) 8 SCC 254 [Prabir Purkayastha vs. State (NCT of Delhi dated May 15, 2024] wherein in para nos. 28,29, 30, 37 and 48 Hon‟ble Apex Court observed as under:
“28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned.
Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.
Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576] laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of the learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the appellant-accused is noted to be rejected.
The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the record because the arrest memo does not indicate the grounds of arrest being incorporated in the said document. Column 9 of the arrest memo (Annexure P-7) which is being reproduced hereinbelow simply sets out the “reasons for arrest” which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the “grounds of arrest” would be personal in nature and specific to the person arrested.
“9. Reason for arrest
(a) Prevent the accused person from committing any further offence.
(b) For proper investigation of the offence.
(c) To prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner.
(d) To prevent such person from making 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 the police officer.
(e) As unless such person is arrested, his presence in the court whenever required cannot be ensured.”
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 tampering 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.”
He also referred another citation of the Hon‟ble Apex Court reported in 2024 7 SCC 576 [Pankaj Bansal vs. Union of India & Ors. dated October 3, 2023] wherein in para nos. 38 and 45 Hon‟ble the Apex Court observed as under:
“38. In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 PMLA enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the court must be satisfied, after giving an opportunity to the Public Prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorised officer arrested him/her under Section 19 and the basis for the officer's “reason to believe” that he/she is guilty of an offence punishable under the 2002 Act. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 PMLA, is meant to serve this higher purpose and must be given due importance.
On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) PMLA of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi [Moin Akhtar Qureshi v. Union of India, 2017 SCC OnLine Del 12108] and the Bombay High Court in Chhagan Chandrakant Bhujbal [Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 9938 : (2017) 1 AIR Bom R (Cri) 929] , which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that ED's investigating officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. As this form of communication is not found to be adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution and Section 19(1) PMLA, we have no hesitation in holding that their arrest was not in keeping with the provisions of Section 19(1) PMLA. Further, as already noted supra, the clandestine conduct of ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in consequence, their remand to the custody of ED and, thereafter, to judicial custody, cannot be sustained.”
Referring the same, Learned Senior Counsel drawn the attention of this Court that in the earlier citation Hon‟ble Apex Court also discussed about this present citation regarding “grounds of arrest” and finally Learned Senior Counsel also referred another citation of the Hon‟ble Supreme Court of India reported in 2025 SCC OnLine 269 [Vihaan Kumar vs. State of Haryana & Anr. dated February 7, 2025] wherein in para No.21 Hon‟ble Apex Court further observed as under:
“CONCLUSIONS
Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);
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;
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 requirements of Article 22(1);
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);
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
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.”
Referring the same, Learned Senior Counsel submitted that since from the relevant prosecution papers it is clearly established that there is clear violation of Article 22(1) of the Constitution of India, so, in spite of statutory restrictions under the relevant provisions of the act, there is no bar that the present accused person may not be released on bail.
On the other hand, Learned Addl. P.P. opposed the bail application but failed to satisfy the contentions raised by Learned Senior Counsel regarding the “grounds of arrest”. Learned Addl. P.P. submitted that the materials on record justifies detention of the accused in custody and as such, urged for rejection of the bail application for the sake of investigation. Learned Addl. P.P. further sought time to produce the case diary on the next day.
Considered.
In this case, prosecution was set into motion on the basis of an F.I.R. laid by SI, Joy Thapa, Ambassa PS to O/C Ambassa PS alleging inter alia that on that day at about 1515 hours the informant received an information from reliable source that one twelve-wheeler truck bearing registration No.AS01-HC-6438 was proceeding towards Agartala from Churaibari side carrying contraband items suspected to be YABA tablets. After receipt of the information, the said fact was written down in Ambassa PS GD entry vide No.20 dated 10.02.2025. Thereafter, an R/G was sent to Ambassa to SD (CS) Dhalai Tripura seeking permission to intercept and conducted search of the said vehicle. Another R/G was sent to SDM Ambassa to depute one Executive Magistrate (DCM) at Betbagan Police Naka point on NH-8. At about 1535 hours the informant along with SI Rajesh Bhattacharjee and other staff of Ambassa PS including Inspector Nandan Das left the PS for Betbagan Police Naka on NH-8 road carrying investigation kit box and other articles and they arrived at Betbagan Police Naka point on NH-8 at about 1550 hours. After some time, at about 1655 hours one vehicle bearing No. AS01-HC-6438 (TATA 12-wheeler truck) was detained at Betbagan Police Naka point on NH-8. The vehicle was signalled and stopped at Betbagan Police Naka Point and one driver and one co-driver inside the vehicle were found. Being asked, they disclosed their name as Sibajul Hossain and Sairul Islam. After that an Executive Magistrate was called for along with two independent witnesses. Thereafter, he prepared pre-search memo in presence of the independent witnesses and DCM Ambassa. He also issued notice under Section 50 of the NDPS Act upon the persons namely Sibajul Hossain and Sairul Islam and on their personal search in presence of independent witnesses one mobile phone Infinix smart HD having IMEI 1:352160268829005 and IMEI 2:352160268829013 was recovered from the possession of Sibajul Hossain and another mobile Vivo T2 Pro 5G having IMEI:1-869916064416099 & IMEI:2-869916064416081 was recovered from the possession of Sairul Islam. The informant along with other staff caused search in the said detained vehicle in presence of DCM Ambassa and independent witnesses when they recovered 462 packets of identical rectangle size containing in total 9,24,000 nos. (approx.) suspected to be YABA tablets weighing100.095 Kg from inside cuboidal artificial improvised chamber having dimension of 75×65×55 cm (approx.) attached to the fuel tank of the vehicle displaying registration No.AS01-HC-6438 (TATA 12-wheeler truck). It was also stated that the vehicle was loaded with 10 MTS of coal. The kit test was conducted and thereafter he seized the suspected contraband YABA tablets and also taken those persons into custody and laid the F.I.R. Accordingly, this present case was registered and in course of investigation the I.O. produced those two persons namely sibajul Hossain and Sairul Islam before the Court. During the period of investigation some more other accused persons were arrested in connection with this case including the present accused person in custody and were also produced before the respective Court. This is the gist of the F.I.R.
I have perused the relevant prosecution papers and also the different compliance reports submitted by the I.O. of this case before the Court as indicated above.
From the aforesaid compliance reports submitted by I.O. to the Court it appears that save and except the names of said five persons nowhere the name of the present accused person is found, which was revealed from the statement of accused, Md. Ansar Uddin Laskar being the master mind of the alleged crime and from the interrogation report of the accused only it transpires that he has modified the fuel tanker of the seized vehicle bearing registration No. AS01-HC-6438 (TATA 12-wheeler truck) as per request of the accused Saikul Uddin Laskar, Ansar Uddin Laskar etc. which is also not supported by the statements of other witnesses or the accused persons.
I have also perused the arrest memo (Annexure-P). In the respective column of grounds of arrest it is mentioned “above noted reference”. From the said marking it is not clear as to whether the grounds of arrest were duly intimated to the accused in custody or not which violates the principle of law laid down by the Hon‟ble Apex Court in the aforenoted cases and also violated Article 22 of the Constitution of India.
In maximum numbers of cases, time and again it is observed that the concerned I.Os are not following or implementing the directions of law laid down by the Hon‟ble Apex Court. The investigation of the case is in progress and this is a case under NDPS Act.
At this stage of investigation it cannot be conclusively said that the present accused in custody is totally innocent. It may so happen that during investigation some more materials may come out against the present accused person. However, after going through the citations of the Hon‟ble Apex Court referred by Learned Senior Counsel, Mr. Sarkar and considering the fact that Learned Addl. P.P. could not show any materials to counter the submission of Learned Senior Counsel and to satisfy this Court that the “grounds of arrest” were duly intimated to the accused person in custody and furthermore on perusal of the materials so far collected by the I.O. up to this stage of investigation prima facie I find no scope to apply the provision of Section 37 of NDPS Act against the present accused.
So, considering the relevant prosecution papers, I find no further scope to detain the accused in custody at this stage. However, since the investigation of this case is in progress, I am not inclined to grant regular bail to the accused person but considering the materials on record the accused in custody namely, Samim Uddin Purkayastha may be enlarged on interim bail till 27.06.2025 of his execution of bond of Rs.1,00,000/- with two sureties of like amount to the satisfaction of Learned Special Judge (NDPS), Dhalai Judicial District, Ambassa with the following terms and conditions:
i. That the accused shall appear before the I.O. once in a week till next date.
ii. The accused shall not make any attempt to tamper the evidence on record of the prosecution.
iii. The accused shall not leave the jurisdiction of the Court without prior permission of the Court, failing which the accused shall be in JC as before.
Learned Addl. P.P. be asked to satisfy this Court regarding the grounds raised by Learned Senior Counsel yesterday and today which Learned Addl. P.P. at this stage failed to satisfy for want of CD on the next date. Learned Addl. P.P further be asked to direct the I.O. to remain present before this Court along with the up-to-date CD failing which serious view will be taken against him. Further the I.O be asked to paginate all the papers of the CD at the time of production of the same before the Court and the CD should be produced well in advance for perusal of the Court and the prosecutor, if so requires.
List the matter on 27.06.2025.
A copy of this order be supplied to Learned Addl. P.P. in course of the day. A copy of this order also be supplied to Learned Senior Counsel for the accused person in custody.
Send down the LCR along with a copy of this order.