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2025 (6) TMI 1161 - HC - Indian LawsSeeking grant of bail - violation of petitioners constitutional rights under Article 22(1) of the Constitution of India - failure to communicate the grounds of arrest in writing - no grounds of arrest were mentioned in the notice - violation of principles of natural justice - HELD THAT - The instant bail application has been filed by the petitioners mainly on the ground that they were not furnished in the grounds of arrest at the time of their arrest. Neither such grounds were furnished in writing to their friends relatives or such other persons as may be nominated or disclosed by the arrested persons. On perusal of the case diary it appears that the notices under Section 47 of the BNSS were served on the petitioners on the date of their arrest i.e. on 13.12.2024. To ascertain whether the said notice contains any grounds of arrest or not it is required to reproduce one of the notices issued to one of the petitioners in this case. All other notices are drafted in the same manner. On perusal of notice notice it appears that it not only contains about the intimation of the arrest of the petitioners in connection with DRI Case No. 21/ CL/ NDPS/ HEROIN/ DRI/ GZU/ 2024-25 but also mentions the grounds in as much as it clearly discloses that the petitioner was found actively involved in the possession/transportation/carrying/ dealing with the 3180.830 gram of heroin which was seized on 13.12.2024 and that the petitioner has consciously violated the provisions of Section 8(c) of NDPS Act 1985. The petitioner was informed about the accusation against him for which he was arrested. The basic facts which necessitated his arrest in this case is that he was found actively involved in possessing/transporting/carrying/ dealing with the seized heroin which in the considered opinion of this Court is sufficient compliance of indicating the grounds of arrest to the petitioner. Hence this Court is of considered opinion that there is no violation of the constitutional mandate as well as the statutory requirement of furnishing the grounds of arrest to the petitioners immediately after their arrest. In so far as compliance of Section 48 of BNSS in furnishing the intimation of arrest as well as grounds of arrest above of the petitioners to the relatives friends or such other persons as may be disclosed or nominated by the petitioners is concerned it appears from the case diary that such notices under Section 48 of the BNSS were issued as per the information given by the petitioners to their relatives friends or other persons as may be disclosed or nominated by them on 13.12.2024 itself. It also appears from the case diary that additionally the family members/friends/nominated persons as the case may be of the petitioners were also telephonically informed about the arrest of the petitioners in connection with this case. It also appears from the case diary that the the relatives/friends/nominated persons of the petitioners are the resident of the state of Manipur and therefore the notices were sent through speed posts in which this Court finds no error. Though there is a requirement of issuance of notice under Section 48 forthwith i.e. as soon as possible and in the instant case it appears from the case diary that the notices were issued on 13.12.2024 - Apart from making mere oral submission that notices were received belatedly by the persons to whom such notices were addressed and producing the photocopy of the envelop at the time of hearing nothing could be produced before this Court to show that the notices were intentionally sent belatedly to deprive the petitioners of their constitutional rights. Conclusion - As there is clear proof of issuance of notice to the relatives/ friends/ nominated persons of the petitioners in this case this Court is of considered opinion that the procedural requirement of Section 48 of the BNSS has also been substantially complied with in this case and therefore the petitioners have failed to make out a case of non-compliance of the mandatory provisions of Article 22(1) 47 and 48 of the BNSS. The petitioners have failed to overcome the embargo of Section 37 of the NDPS Act 1985 in this case hence the prayer for bail is rejected and this bail application is accordingly dismissed.
1. ISSUES PRESENTED and CONSIDERED
- Whether the petitioners' constitutional rights under Article 22(1) of the Constitution of India were violated at the time of their arrest by failure to communicate the grounds of arrest to them in writing as mandated? - Whether the statutory requirements under Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, regarding furnishing of grounds of arrest to the arrested persons and intimation thereof to their relatives, friends, or nominated persons were complied with? - Whether the delay or failure in serving notices under Section 48 of BNSS to the relatives/friends/nominated persons of the petitioners vitiates the arrest and entitles the petitioners to bail? - Whether the petitioners are entitled to bail in light of the embargo under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, given the seizure of commercial quantity of heroin? - Whether the subsequent bail application filed by the petitioners after dismissal of the earlier bail application is maintainable? 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Violation of constitutional mandate under Article 22(1) regarding communication of grounds of arrest The legal framework involves Article 22(1) of the Constitution of India, which mandates that no person arrested shall be denied the right to be informed of the grounds of arrest. The Apex Court precedent cited (Vihaan Kumar -Vs- State of Haryana) clarifies that mere information of arrest is distinct from furnishing the grounds of arrest, and the latter must be communicated in writing to the arrested person to make the constitutional safeguard effective. The petitioners contended that although notices under Section 47 of BNSS were served, these notices did not specify the grounds of arrest, thus violating Article 22(1). The petitioners argued that the notices merely informed them of their arrest without stating the factual basis or grounds for the arrest. Upon examination of the case diary and the notices served, the Court reproduced one such notice served on petitioner Sahil Gurung. The notice explicitly stated that the petitioner was found actively involved in possession, transportation, carrying, and dealing with 3180.830 grams of heroin, violating Section 8(c) of the NDPS Act, 1985, and that he was arrested under Sections 42/43 of the NDPS Act. This disclosure of the specific accusations and statutory provisions violated was held by the Court to be sufficient compliance with the requirement to furnish grounds of arrest. The Court reasoned that the notice did not merely inform about the arrest but detailed the basic facts necessitating the arrest, thus fulfilling both constitutional and statutory mandates. The Court rejected the petitioners' contention that the grounds were not communicated, holding that the notices complied with Article 22(1) and Section 47 of BNSS. Issue 2: Compliance with Section 48 of BNSS regarding intimation to relatives/friends/nominated persons Section 48 of BNSS requires that intimation of arrest and grounds thereof be communicated forthwith to the relatives, friends, or persons nominated by the arrested individual, so that they may take steps to secure release if appropriate. The petitioners argued that the notices under Section 48 were issued belatedly-sent on 28.12.2024 and received only on 04.01.2025-thereby frustrating the purpose of timely intimation. They contended that this delay violated their statutory rights and the constitutional mandate under Article 22(1). The Court scrutinized the case diary and the notices issued to the nominated persons. It found that notices were issued on 13.12.2024 itself, the date of arrest, and that telephonic intimation was also given to relatives/friends/nominated persons on the same day. The Court reproduced a sample notice to a nominated person, which clearly stated the grounds for arrest and the date of arrest. Regarding the petitioners' submission about the photocopy of an envelope indicating the notice was sent on 28.12.2024, the Court noted the absence of any affidavit or material clarifying the endorsement on the envelope or the actual date of receipt. The Court observed that the petitioners did not provide postal tracking details or evidence to prove intentional delay by authorities. Since the relatives/friends/nominated persons resided in Manipur, notices were sent by speed post, which was found reasonable. The Court held that the procedural requirement of Section 48 had been substantially complied with and that mere oral submissions without supporting evidence were insufficient to establish violation. Issue 3: Applicability of Section 37 NDPS Act and maintainability of subsequent bail application Section 37 of the NDPS Act imposes a statutory bar on granting bail in cases involving commercial quantity of narcotics. The seizure of approximately 3180.83 grams of heroin clearly amounts to commercial quantity. The learned standing counsel for DRI emphasized that the embargo under Section 37 applies, and the petitioners failed to overcome this bar. The Court noted that the earlier bail application was dismissed after perusal of the case diary and that the present bail application was a subsequent one, which ordinarily is not maintainable unless new grounds are made out. The petitioners' sole new ground was alleged violation of constitutional and statutory rights under Article 22(1), Sections 47 and 48 of BNSS. However, as analyzed above, the Court found no such violation. Therefore, the petitioners failed to establish any fresh ground warranting reconsideration of bail. The Court applied the law to the facts, holding that the petitioners were not entitled to bail in view of the statutory embargo and the absence of any violation of constitutional or statutory provisions. 3. SIGNIFICANT HOLDINGS "If we peruse the aforesaid notice, it appears that it not only contains about the intimation of the arrest of the petitioners in connection with DRI Case No. 21/ CL/ NDPS/ HEROIN/ DRI/ GZU/ 2024-25 but also mentions the grounds in as much as it clearly discloses that the petitioner was found actively involved in the possession/transportation/carrying/ dealing with the 3180.830 gram of heroin which was seized on 13.12.2024 and that the petitioner has consciously violated the provisions of Section 8(c) of NDPS Act, 1985. The petitioner was informed about the accusation against him for which he was arrested. The basic facts which necessitated his arrest in this case is that he was found actively involved in possessing/transporting/carrying/ dealing with the seized heroin which in the considered opinion of this Court is sufficient compliance of indicating the grounds of arrest to the petitioner." "Thus, though minimal information has been provided in the notice but it cannot be said that it is bereft of grounds of arrest as it clearly states the grounds for which necessitated the arrest of the petitioner i.e., possessing, carrying, transporting, dealing with 3180.830 grams of suspected heroin." "Under such circumstances, as there is clear proof of issuance of notice to the relatives/ friends/ nominated persons of the petitioners in this case, this Court is of considered opinion that the procedural requirement of Section 48 of the BNSS has also been substantially complied with in this case and, therefore, the petitioners have failed to make out a case of non-compliance of the mandatory provisions of Article 22(1), 47 and 48 of the BNSS." "The petitioners have failed to overcome the embargo of Section 37 of the NDPS Act, 1985 in this case hence, the prayer for bail is rejected and this bail application is accordingly dismissed."
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