Staff Reporter
Guwahati: The Gauhati High Court (HC) observed that unless steps are taken against investigating authorities for violating mandatory provisions on arrest, constitutional safeguards would continue to be violated and tinkered with. The HC directed the Assam government to frame requisite guidelines making the concerned arresting/investigating officer liable for non-compliance with the requirements mandated under Article 22 of the Constitution.
The single-judge bench of Justice Kaushik Goswami said this while allowing the bail application (No.624/2025) of an NDPS accused, Azibur Rahman @ Aziz @ Ajibur. He expressed dissatisfaction and displeasure for non-compliance in informing the arrestee of his rights under Article 22 of the Constitution by the investigating/arresting authority, thereby leaving the court with no option but to grant bail under the Special Act, etc.
It was submitted that the arresting authorities had not informed the grounds of arrest to the accused/petitioner at the time of arrest, and hence, there has been a gross violation of Articles 21 and 22 of the Constitution of India and also under Section 50 of the Criminal Procedure Code (CrPC) corresponding to Section 47 of the BNSS.
The prosecution’s case was that the police had received information that an illegal business of ganja (cannabis) was going on in the room of the accused/petitioner, and they started an investigation, following which they located the accused/petitioner in his room. The accused led the team to the place where the ganja was kept concealed in a drum, along with other consignments of the drug.
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/petitioner, were arrested.
On the other hand, the counsel for the petitioner submitted that the arresting authorities did not follow the mandatory procedure for search and seizure as mandated under Rule 3 (1)(2)(3)(4) and Rule 10 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022.
It was further submitted that the petitioner was in custody for more than 2 (two) years, and till now the prosecution has been able to examine only 6 witnesses out of 19 listed witnesses, and that the prosecution may take a considerable period for completion of the trial. Accordingly, the accused/petitioner was released on bail in connection with the case on furnishing a bail bond of Rs. 50,000 with two sureties of like amount.
Regarding the non-compliance of the constitutional requirement, Justice Goswami observed, “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.”
“That apart, 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,” he added.
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