Gauhati High Court
Monsing Mochahari vs The State Of Assam on 17 July, 2025
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GAHC010135472025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2078/2025
MONSING MOCHAHARI
S/O- BIRANJIT MOCHAHARI.
R/O- VILL.- DEOCHANI
P.O. AND P.S.- MAJBAT
DIST.- UDALGURI
BTAD
ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP ASSAM
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Advocate for : MR. M BISWAS
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 17.07.2025
1. Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. B.
Sarma, learned Additional Public Prosecutor for the State.
2. This application under Section 483 of BNSS, 2023 has been filed by the
petitioner, namely, Monsing Mochahari, who has been detained behind the bars
since 06.02.2025 (for last 5 months 11 days) in connection with Rangapara GRPS
P.S. Case No. 01/2025 under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985
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corresponding to Special (NDPS) Case No. 29/2025 before the Court of learned
Sessions Judge, Sonitpur, Tezpur.
3. This case was registered on the basis of an FIR lodged by one Rajen
Rajbonshi, before the Officer-in-charge of GRPS Sonitpur, inter alia, alleging that 20
kg 300 grams of suspected ganja was recovered from the possession of the
present petitioner along with one co-accused.
4. The learned counsel for the petitioner has submitted that the petitioner is
praying for bail in this case mainly on the ground of violation of his fundamental
rights guaranteed under Article 22(1) of the Constitution of India as well as
statutory rights guaranteed under Section 47 of the BNSS. He submits that though
notice under Section 47 of BNSS was served on the petitioner on 06.02.2025 when
he was arrested, however, said notice does not contain any grounds of arrest. He,
therefore, submits that merely on the said ground the petitioner is entitled to get
bail in this case.
5. The learned counsel for the petitioner relies on the ruling of the Apex
Court in the case of “Vihaan Kumar Vs. State of Haryana” reported in “(2025)
5 SCC 799”.
6. On the other hand, the learned Additional Public Prosecutor has
submitted that in this case, in the meanwhile, charge-sheet has already been laid.
However, after perusing the notice under Section 47 of BNSS, he also clearly
submits that same does not contain the grounds of arrest.
7. I have considered the submissions made by the learned counsel for both
sides and have gone through the materials available on record.
8. The Apex Court in this case of ” Vihaan Kumar Vs. State of Haryana”
reported in “(2025) 5 SCC 799” has observed as follows:-
“26.1. The requirement of informing a person arrested of grounds of
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26.2. 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;
26.3. 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);
26.4. 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 charge-sheet will not
validate a breach of constitutional mandate under Article 22(1);
26.5. 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
26.6. 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.”
9. It is seen from above that the Apex Court has observed that when a
person is arrested, at the time of his arrest, the grounds of arrest are to be
furnished to him in writing and if same is not done, it would be a violation of the
constitutional mandate provided under Article 22(1) of the Constitution of India
and on that account, the arrest of such an arrestee would instead become vitiated
and for the same reason, such an arrestee is entitled to get bail.
10. In this case also, there has been a violation of the aforesaid constitutional
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mandate as the notice served on the petitioner does not contain any grounds of
arrest. Therefore, this Court is of considered opinion that the petitioner is entitled
to get bail in spite of the embargo of Section 37 of the NDPS Act as said, the
embargo is overridden by the fundamental rights guaranteed to the petitioner
under article 22(1) of the Constitution of India.
11. Accordingly, the above named petitioner is allowed to go on bail of up to
Rs.30,000/- (Rupees Thirty Thousand) with one surety of like amount subject to
the satisfaction of the learned Special Judge (NDPS), Sonitpur, Tezpur with
following conditions:-
i. That the petitioner shall co-operate in the trial of Special (NDPS) Case No.
29/2025, which is pending in the Court of the learned Sessions Judge,
Sonitpur, Tezpur.
ii. That the petitioner shall appear before the Trial Court as and when so
required by the Trial Court;
iii. That the petitioner shall not directly or indirectly make any inducement,
threat, or promise to any person who may be acquainted with the facts of
the case, so as to dissuade such person from disclosing such facts before the
Trial Court in the trial pending against the present petitioner;
iv. That the petitioner shall not leave the jurisdiction of the Trial Court
without prior permission of the Trial Court and when such leave is granted by
the Trial Court, the petitioner shall submit her leave address and contact
details during such leave before the Trial Court; and
12. This bail application is accordingly disposed of.
JUDGE
Comparing Assistant
