Gauhati High Court: Constitutional Safeguards To Arrestee Shall Continue Being Tinkered Unless Investigating Authorities Made Liable For Their Lapses
The Gauhati High Court allowed a Bail Application of an accused under Section 483 of the BNSS, seeking bail in a case registered under Section 20(b)(ii)(c) of the NDPS Act.
Justice Kaushik Goswami, Gauhati High Court
The Gauhati High Court remarked that unless the investigating/arresting authorities are made liable for their lapses in complying with the mandatory requirements relating to arrest, the Constitutional safeguards guaranteed to an arrestee shall continue being tinkered.
The Court remarked thus in a Bail Application filed by an accused under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking bail in connection with a case registered under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
A Single Bench of Justice Kaushik Goswami observed, “Before parting with the record of the case, I would like to pen down my dissatisfaction and displeasure as regards the non-compliance of the constitutional requirement of informing the arrestee his right under Article 22 of the Constitution of India by the investigating/arresting authority whereby the constitutional court is left with no option but to grant bail even in cases of heinous and serious offence and cases under the Special Act etc. I am thus of the firm opinion that unless and until such investigating/arresting authority are made liable for their lapses in complying with the mandatory requirements relating to arrest, the constitutional safeguards guaranteed to an arrestee shall continue being tinkered and violated.”
The Bench said that non-compliance of Article 22(1) of the Constitution of India being clearly established in this case, the arrest of the accused is totally illegal and is vitiated.
Advocate Y.S. Mannan appeared for the Petitioner/Accused while Additional Public Prosecutor (APP) R.R. Kaushik appeared for the Respondent/State.
Case Background
As per the prosecution case, one Sub-Inspector of Pragjyotishpur Police Station lodged an ejahar alleging that in 2023, the Officer-in-Charge received an information that illegal business of Ganja (Cannabis) is going on in the room of the Petitioner-accused. The police personnel proceeded to the location and started investigation and upon such investigation allegedly found the accused in his room and he led the team to the place where the Ganja was kept concealed in a drum. Accordingly, in the presence of the independent witnesses, the police personnel weighed the drum along with Ganja and found the weight to be 22.225 kg and thereafter seized the same.
Thereafter, the police personnel along with the accused proceeded to a hotel from where one plastic white colour carry bag containing 720 grams of Ganja was recovered from the possession of the co-accused. Thereafter, another drum containing Ganja weighing 16.525 kg was seized from an abandoned school. Accordingly, a case was registered under Section 20(b)(ii)(c) of the NDPS Act and the contraband articles were all seized and the accused persons including the accused were arrested. The Trial Court denied bail to them, and hence, the bail was sought by the accused before the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “It would also be worthwhile to mention that, it also cannot be denied that the accused/petitioner has been behind the bar for more than 2 years from the date of his arrest and till now the prosecution has been able to examine only 6 witnesses out of 19 nos. of listed witnesses and it also cannot be denied that the prosecution may take a considerable period for completion of the trial. That apart, none of the listed witnesses, who have been examined till date, have implicated the accused/petitioner.”
The Court added that the rigor of Section 37 of the NDPS Act shall not affect the power of the High Court to grant bail to the accused.
“Hence, I shall be failing in my duty, if the accused/petitioner is not released forthwith. Therefore, on this score alone, further detention of the accused/petitioner in the custody is totally unjustified”, it further remarked.
The Court said that it cannot be ruled out that the compliance of the mandatory requirement relating to arrest is also capable of being misused by the arresting authority at times.
“I therefore, request the Chief Secretary to the Government of Assam to look into the matter and take appropriate steps not only for sensitizing strict compliance of the mandatory requirements relating to arrest but also for framing requisite guidelines making the concerned arresting/investigating officer liable for non-compliance of the requirement mandated under Article 22 of the Constitution of India”, it concluded.
Accordingly, the High Court granted bail to the accused on furnishing a bail bond of Rs. 50,000/- with two sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the Additional Sessions Judge.
Cause Title- Azibur Rahman @ Aziz @ Ajibur v. The State of Assam (Neutral Citation: 2025:GAU-AS:5385)
