2025 (9) TMI 1532 - HC - Indian Laws

Natural justice breached as arrest grounds weren't shared; accused granted conditional bail on Rs.50,000 bond with two sureties

Anar Ali S/O- Kashim Ali. Versus The State of Assam

The HC found violation of natural justice where grounds of arrest were not communicated to the arrestee and no contemporaneous written grounds existed, ... Violation of principles of natural justice - grounds of the arrest were not communicated to the petitioner at the time of arrest or immediately thereafter - recovery of “dry leaf materials” suspected to be ‘ganja’ - Second application of the petitioner for bail - HELD THAT:- Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT] is a case wherein the Hon’ble Apex Court examined the manner of arrest of accused Pankaj Bansal, under the provisions of the Prevention of Money Laundering Act (PMLA) and as to whether such arrest was in keeping with the safeguards guaranteed under Section 19 of the PMLA. While referring to the judgment of Bijay Madanlal Choudhary Vs. Union of India [2022 (7) TMI 1316 - SUPREME COURT (LB)], the Hon’ble Apex Court noted that the safeguard of Section 19 of the PMLA was not dealt with or delineated in that judgment. And in V. Senthil Balaji Vs. State [2023 (8) TMI 410 - SUPREME COURT], though it was noted that the information of grounds of arrest in a PMLA case should be served on the arrestee, but it did not elaborate on that issue. The Hon’ble Apex Court further noted that the Enforcement Director follows no consistent and uniform practice in this regard. The grounds of arrest must be provided to the arrestee in terms of Article 22(1) of the Constitution of India; however, the mode of furnishing such grounds of arrest, shall depend upon the statutory prescription, if any, and in the absence of any prescription of furnishing written grounds of arrest, the arresting authority must ensure compliance of Article 22(1) of the Constitution of India. Now coming to the case in hand, the accused was served with a notice under Section 50 of Cr.P.C. A scrutiny of the said notice goes to show that the petitioner was only informed that he had been arrested in connection with Hajo P.S. Case No. 239/2023, and that the case is non-bailable, and he would be produced before the Court of JMFC, Hajo, Kamrup on 03.04.2023 - Admittedly, there was no disclosure of the grounds of arrest. Perusal of the records, this Court has not found any contemporaneous record, even remotely suggesting that the grounds were reduced into writing at the time of arrest, and the same were read over/explained to the accused. This Court is of the unhesitant view that the petitioner is entitled to a direction for release from custody - Since the petitioner is in custody of the Court, and the trial is at advance stage, this Court is of the opinion that ends of justice would be served if the petitioner is released on bail, rather than released without any condition of bail. It is directed that the petitioner shall be released on bail, on executing a bail bond of Rs. 50,000/- with two suitable solvent sureties of like amount to the satisfaction of the learned Additional District and Sessions Judge, Kamrup, Amingaon, in connection with the aforementioned case and shall be subject to the fulfilment of conditions imposed. Bail petition is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether non-communication of the grounds of arrest to an arrestee at the time of arrest or immediately thereafter constitutes a violation of Article 22(1) of the Constitution and renders the arrest and consequent custody illegal. 2. Whether a procedural lapse in furnishing written grounds of arrest can be cured by subsequent explanations/affidavits or by production on remand, particularly where statutory bars to bail (e.g., under the NDPS Act) exist. 3. Whether the mandate in decisions requiring written grounds of arrest is to be read prospectively or applies retrospectively to arrests before the date of such pronouncements. 4. Whether compliance with Section 50 Cr.P.C. by an arrest memo that merely names the case/sections and announces non-bailability suffices as full particulars of offence/grounds of arrest, or whether contemporaneous record showing reduction and oral communication of grounds is required. 5. Whether demonstrable prejudice is the appropriate test for non-compliance with the requirement to inform grounds of arrest when no specific form or written format is prescribed. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Legality of arrest for non-communication of grounds (Article 22(1)) Legal framework: Article 22(1) guarantees information of grounds of arrest; statutory counterparts (e.g., Section 19(1) PMLA; Section 43B(1) UAPA) and procedural provisions (Section 50 Cr.P.C.) prescribe related safeguards. Where statute prescribes manner/form, compliance is mandatory. Precedent treatment: The Court reviewed a line of Supreme Court decisions holding that lack of communication of arrest grounds violates Articles 21 & 22 and can vitiate custody; earlier rulings require furnishing written grounds where statute prescribes; others (post-Pankaj Bansal and Vihaan Kumar) hold that established violation requires release. Interpretation and reasoning: The Court adopts the principle that informing grounds of arrest is mandatory and central to constitutional protection. Where statutory prescription exists for form/manner, it must be scrupulously followed; absent such prescription, compliance must nonetheless be ensured (either in writing or orally) and evidenced by contemporaneous record. Ratio vs. Obiter: Ratio - Non-communication of grounds of arrest violates Articles 21 & 22 and renders custody illegal; contemporaneous written/oral record of communication is required for judicial review. Obiter - Observations about the scope of relief (bail v. release) in particular contexts where other statutory bars apply. Conclusion: Non-communication in the present case constituted a violation of Article 22(1), rendering the arrest/custody invalid and entitling the arrestee to relief. Issue 2 - Effect of arrest illegality on custody/remand and interaction with statutory bail bars Legal framework: Courts possess power to grant bail/release where fundamental-rights violations during arrest are established, notwithstanding statutory restrictions on bail; custody flowing from arrest is vitiated if arrest is illegal. Precedent treatment: Vihaan Kumar and Kasireddy Upendra Reddy hold that once arrest is vitiated for Article 22/21 violations, the person cannot remain in custody and relief (including bail) follows even when statutory bars exist; Pankaj Bansal/Prabir Purkayastha similarly emphasize invalidity of custody for non-communication. Interpretation and reasoning: The Court reasoned that illegality at arrest affects validity of custody and remand; judicial remand cannot validate an inherently illegal arrest-custody chain when constitutional mandate is breached. However, because trial was at an advanced stage and custody was by court remand, Court adopted a remedial approach granting bail on conditions rather than absolute discharge. Ratio vs. Obiter: Ratio - Established violation of Article 22(1) can form a ground for release/bail despite statutory restrictions. Obiter - Practical considerations on tailoring relief (conditional bail) where trial advanced. Conclusion: Arrest illegality vitiated custody; the Court granted bail with conditions rather than unconditional release, applying the cited ratios. Issue 3 - Prospectivity of supervisory rulings requiring written grounds (effect of Pankaj Bansal) Legal framework: Judicial pronouncements ordinarily apply to rights and obligations unless expressly made prospective; wording of judgments may indicate prospective application in administrative contexts. Precedent treatment: Pankaj Bansal held that a copy of written grounds should be furnished 'henceforth' as a matter of course; later decisions interpreted the requirement variably with respect to form and substantial compliance. Interpretation and reasoning: The Court interpreted 'henceforth' in Pankaj Bansal as addressing uniformity of practice, not as limiting the constitutional right to notice to a prospective application. Constitutional/statutory rights are not to be construed as prospective unless expressly so declared. Ratio vs. Obiter: Ratio - The obligation to inform grounds flows from Article 22(1) and is not made prospectively by Pankaj Bansal; the 'henceforth' language dealt with uniform practice. Obiter - Remarks on administrative uniformity and forms. Conclusion: The Pankaj Bansal directive is not a proscription on retrospective application; the right to be informed of grounds applies to arrests prior to the judgment as much as after. Issue 4 - Sufficiency of Section 50 Cr.P.C. notice that names only case/sections and non-bailability Legal framework: Section 50 Cr.P.C. requires informing the arrested person of the offence for which they are arrested. The mode may be oral or written depending on statutory prescription and circumstances. Precedent treatment: Darshan held that when no specific form is prescribed, substantial compliance may suffice and the test is prejudice; Vihaan/Kasireddy emphasize contemporaneous record and individualised communication; courts have accepted reading of warrants or adequate oral explanation in certain contexts. Interpretation and reasoning: The Court examined the arrest memo and found mere mention of case number/sections and non-bailability inadequate as 'full particulars' or grounds of arrest. There was no contemporaneous case-diary entry or record showing grounds were reduced to writing and explained; prosecution conceded absence. Thus the Section 50 notice fell short of constitutional requirement. Ratio vs. Obiter: Ratio - A bare recital of case number/section does not satisfy Article 22(1)/Section 50; contemporaneous record evidencing reduction and explanation is required where written form is not prescribed. Obiter - Examples of sufficient compliance (reading warrant) in other contexts. Conclusion: The Section 50 notice in the case was insufficient; non-disclosure of grounds was established. Issue 5 - Prejudice test and role of contemporaneous record when written form is not mandated Legal framework: Where statute does not prescribe a specific written form, courts consider substantial compliance and prejudice to the accused; contemporaneous official record bolsters proof of compliance and prevents later afterthoughts. Precedent treatment: Darshan endorses a prejudice-oriented approach to Section 50 compliance; Vihaan/Kasireddy stress contemporaneous entries as judicially reviewable evidence; Pankaj Bansal mandates written grounds where statute requires it. Interpretation and reasoning: The Court reconciled precedents: written individualised grounds are mandatory where statute prescribes; where no form is prescribed substantial compliance without demonstrable prejudice may suffice, but contemporaneous record of reduction and communication is necessary to rebut allegations of non-compliance. Subsequent affidavits cannot substitute for absent contemporaneous record. Ratio vs. Obiter: Ratio - Prejudice-oriented test applies when no specific written form is mandated, but contemporaneous record is essential; absence of such record shifts burden to prosecution and makes non-compliance fatal. Obiter - Discussion on interplay of prejudice test with statutory bail bars. Conclusion: In absence of contemporaneous record and any demonstrable compliance, prejudice is deemed established and the requirement of informing grounds was not met. Remedial Conclusion and Order applied to facts Legal reasoning applied: Having found non-communication of grounds and no contemporaneous record, the Court held custody invalid under Articles 21 & 22 and granted release on bail rather than unconditional discharge because trial was advanced and custody was by judicial remand. Disposition: The petitioner was ordered released on bail subject to specified conditions; this application of relief follows the ratios requiring informing grounds of arrest, the necessity of contemporaneous record when written form is not prescribed, and the power to grant bail where constitutional violations are established.