TaxTMI 
TaxTMI 
2025 (9) TMI 1532
X X X X Extracts X X X X
X X X X Extracts X X X X
.... materials" suspected to be 'ganja' and therefore, in terms of Section 2(iii)(b) of the NDPS Act, the same cannot be treated as cannabis. Rather, it is 'bhang', which will come under the provisions of the Assam Ganja and Bhang Prohibition Act, 1959. However, such an argument was rejected at that stage, citing the reason that such a conclusion cannot be arrived at the stage of bail, more particularly in the backdrop of the statement of the seizure witness that the recovered materials were 'ganja', and the Forwarding Report also refers to the recovery of 'suspected ganja'. 4. The present application is filed solely on the ground that the grounds of the arrest were not communicated to the petitioner at the time of arrest or immediately thereafter. 5. According to Mr. N.J. Dutta, learned counsel for the petitioner, nondisclosure of grounds of arrest amounts to a violation of the right of the petitioner under Article 22 (1) of the Constitution of India and therefore, the arrest itself is illegal. Accordingly, the petitioner is required to be released on bail. According to Mr. Dutta, when the arrest itself is unlawful, the custody is equally tainted and therefore, bail must follow.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... date. 11. While replying, Mr. Dutta, learned counsel for the petitioner, contends that the determination made in Darshan (supra) is in conflict with the determination made in Vihaan Kumar (supra) and therefore, both the judgments being authored by benches of the same strength, the earlier determination made in Vihaan Kumar (supra) prevails and is binding upon this Court. 12. I have heard the learned counsels for the parties and perused the materials available on record, and also perused the ratios pressed into service. 13. In the backdrop of the arguments advanced at the Bar, let this Court first consider the ratios laid down by the Hon'ble Apex Court in the judgments cited at the bar. 14. Pankaj Bansal (supra) 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 reported in (2022) SCC Online 929, the Hon'ble Apex Court noted that the safeguard of Section 19 of the PMLA was n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pra) was delivered, does not find any favour of this Court. The expression "henceforth", in the considered opinion of this Court, was used by the Hon'ble Apex Court in the context of lack of uniformity, in furnishing ground of arrest in terms of Form-III appended to the Rules, 2005, and not in the context of the right of the arrestee either under Article 22(1) of the Constitution of India or under Section 19(1) of the PMLA. Further constitutional and statutory rights, as the case may be, can be prospective unless the same are constitutionally or statutorily made prospective. 17. In the case of Vihaan Kumar (supra), the Hon'ble Apex Court reiterated the principle of mandatory requirement of informing an arrestee about the grounds of arrest under Article 22(1) of the Constitution of India and that when violation of the same is established, it is the duty of the Court to order the release of the accused forthwith. The Hon'ble Apex Court went ahead and recorded that an established violation of Article 22(1) of the Constitution of India will be a ground to grant bail, even if, a statutory restriction on grant of bail exists, since statutory limitation does not affect the power of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of Article 22(1) of the Constitution of India, in absence thereof, held that when a specific form is not prescribed, insistence upon written communication in every case is not a mandate and in such a case, substantial compliance with this requirement is sufficient, unless demonstrable prejudice is shown. While referring to Kasireddy Upender Reddy (supra), it was observed that when an arrest is made pursuant to a warrant, reading out the warrant amounts to sufficient compliance. It was further interpreted that Vihaan Kumar (supra) and Kasireddy Upender Reddy (supra), both post Pankaj Bansal (supra), clarified that written individualised grounds are not an inflexible requirement in all circumstances. 21. It is essential to record herein that such a determination was made in reference to compliance of Section 50 of Cr.P.C. Dealing with Section 50 of Cr.P.C., the Hon'ble Apex Court held that while Section 50 of Cr.P.C. is mandatory, the test of compliance of the same should be prejudice oriented, in examining an alleged procedural lapse. 22. Thus, from the aforesaid long line of decisions, it can be safely concluded that; I. Furnishing of the grounds of arrest is manda....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of non-adherence to Section 50 of Cr.P.C., wherein there is no specific mandate of furnishing of grounds of arrest in "writing"; however, In Darshan (supra) the requirement of protection of an arrestee's right under Article 22(1) of the Constitution of India was upheld, further putting the burden on the arresting authority to establish that, the grounds of arrest were communicated with complete particular of offence for which he is arrested or the grounds of such arrest were provided and also that the conduct of arresting authority has not violated the right of the arrestee under Article 22(1) of the Constitution of India. Therefore, conjoint reading of Vihaan (supra) and Darshan (supra) clarifies that under section 50 of the Cr.P.C, written communication may not be a mandate, and the communication can also be oral, however, there must be contemporaneous record in the case diary/official register that the grounds were reduced into writing at the time of arrest and the same were read over/explained to the accused. 26. 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 wa....