Bharat Pukhraj Chaudhary Vs State of Maharashtra (Bombay High Court)
Summary: The Bombay High Court, comprising Justice Nitin W. Sambre and Justice Manjusha Deshpande, allowed a criminal writ petition filed by Bharat Pukhraj Chaudhary challenging his arrest in Crime No. 221 of 2023 registered with Bhoiwada Police Station, Thane, on 21 October 2023. The proceedings concerned alleged offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Drugs and Cosmetics Act, 1940. The petitioner contended that his arrest on 11 February 2024, following his production from judicial custody in Haridwar, violated Articles 21 and 22 of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973, because the investigating authorities had failed to communicate the grounds of arrest in writing. He sought a declaration that the arrest was illegal and challenged the consequential remand orders.
The prosecution alleged that approximately 4,000 bottles of various cough syrups were recovered from co-accused Shiraj and were intended for illegal marketing. During the investigation, the petitioner, who was arraigned as accused No. 5, was alleged to have supplied cough syrups in commercial quantities to other accused persons. At the relevant time, he was already detained in Haridwar prison in Uttarakhand. A production warrant was issued by the Judicial Magistrate First Class, Bhiwandi, on 30 January 2024 and was honoured by the Special NDPS Court, Haridwar, on 7 February 2024. He was brought before the concerned Magistrate and shown as arrested on 11 February 2024, following which remand orders were passed.
The petitioner argued that the mandatory constitutional and statutory requirement of communicating the grounds of arrest had not been fulfilled. Relying upon Pankaj Bansal Vs Union of India, Prabir Purkayastha Vs State (NCT of Delhi), Mahesh Pandurang Naik Vs State of Maharashtra and Dhanraj Aswani Vs Amar S. Mulchandani, he submitted that information concerning the factual grounds of arrest must be meaningfully communicated so that the accused can consult counsel, oppose custodial remand and seek bail. He contended that the fact of production under a judicial warrant did not eliminate this requirement.
The State opposed the petition, contending that the petitioner had criminal antecedents and that his involvement was revealed through the statements of co-accused persons. It argued that he had been produced through a transfer warrant issued by the Bhiwandi Court and honoured by the Special NDPS Court, Haridwar. According to the prosecution, Section 50 CrPC was not attracted in these circumstances. Reliance was also placed on the general diary entry dated 11 February 2024, which referred to communication of reasons for arrest, and on the petitioner’s participation in the proceedings concerning the production warrant. The State submitted that these circumstances demonstrated that he was aware of the allegations and the reasons for arrest.
The High Court examined the safeguards under Article 22(1) and the principles enunciated by the Supreme Court in Pankaj Bansal and Prabir Purkayastha. It reiterated that grounds of arrest must communicate the factual material necessitating the arrest of the particular accused, as distinct from general reasons applicable to persons suspected of committing an offence. The Court held that communication of grounds was essential for enabling the arrested person to exercise the right to legal representation, oppose police custody remand and seek bail. Referring also to the Division Bench decision in Mahesh Pandurang Naik, it emphasised that infringement of this constitutional safeguard vitiated the arrest procedure.
On examining the records, the Court found that the general diary entry dated 11 February 2024 merely referred to communication of reasons for arrest and the right to claim bail. It did not establish that the petitioner had acknowledged receipt of the specific grounds of arrest in writing. The remand application contained similar general assertions, but no written communication of the grounds actually served upon the petitioner was produced. The Court also examined the production warrants issued by the Bhiwandi and Haridwar Courts and found no material demonstrating that the petitioner had been informed in writing of the grounds on which he was to be arrested. The absence of such evidence warranted an adverse inference against the respondents.
The High Court concluded that the State had failed to establish compliance with the requirement to communicate written grounds of arrest. Consequently, the petitioner was held entitled to bail. The writ petition was allowed, and the Court directed his release in Crime No. 221 of 2023 on furnishing a personal recognisance bond of ₹50,000 with one or two sureties in the like amount. It further directed the respondents to remain mindful of the conditions attached to the production warrant issued by the Special NDPS Judge, Haridwar, on 7 February 2024. The operative order granted bail on the constitutional procedural ground; it did not adjudicate the petitioner’s guilt or innocence in the underlying criminal proceedings.
Cases Discussed
1. Pankaj Bansal Vs Union of India & Ors. (Supreme Court); Criminal Appeal Nos. 3051–3052 of 2023; 03/10/2023; 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Followed for the mandatory communication of written grounds of arrest and the requirement that the information provided must meaningfully enable the accused to protect personal liberty.
2. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); Criminal Appeal No. 2577 of 2024; 15/05/2024; 2024 SCC OnLine SC 934; (2024) 8 SCC 254 — Applied for the distinction between general reasons for arrest and grounds specific to the accused, and the consequences of failing to communicate written grounds.
3. Mahesh Pandurang Naik Vs State of Maharashtra & Anr. (Bombay High Court); Writ Petition (ST) No. 13835 of 2024 with Interim Application (ST) No. 14637 of 2024; 18/07/2024 — Followed as a coordinate Bench decision concerning non-compliance with Article 22(1) and invalidity of arrest and remand.
4. Dhanraj Aswani Vs Amar S. Mulchandani & Anr. (Supreme Court); Criminal Appeal No. 2501 of 2024; 09/09/2024; 2024 INSC 669 — Cited by the petitioner in support of the challenge to arrest and remand procedure.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
RULE. Rule made returnable forthwith and heard finally with consent of the learned counsel for the parties.
2. The petitioner has sought a declaration that his arrest in Crime No.221 of 2023 registered with Bhoiwada Police Station, Thane on October 21, 2023 under Section 8(K), 22(K) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 18(K), 18(A) punishable under Section 27(B) and 28(A) of the Drugs and Cosmetics Act, 1940 is illegal and is in gross violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India so also Section 50 of the Code of Criminal Procedure, 1973. The petitioner has also sought quashing of the remand order dated February 11, 2024 and subsequent remand orders in the aforesaid case.
3. The facts necessary for deciding the writ petition are as under:-
4000 bottles of various cough syrups were found in possession of co-accused Shiraj. The possession was with an intention to illegally market the same, which falls within the definition of psychotropic substance. As a sequel of above, the offence being Crime No.221 of 2023 referred above came to be registered. The present petitioner is impleded as accused no.5 and his address is shown as resident of Pali District, Rajasthan.
4. The petitioner was already detained in Haridwar prison located in the State of Uttarakhand. During the investigation, direct involvement of the petitioner was noticed in the above crime. Based on the production remand, the petitioner was produced and shown to have been arrested on February 11, 2024, as the transit warrant was honoured by the Court at Haridwar on February 07, 2024. Based on the above, the petitioner came to be arrested and produced before the Magistrate on February 11, 2024 and was then subjected to various remand orders.
5. The counsel for the petitioner would urge that in law, it is mandatory to communicate in writing the grounds of arrest to the petitioner in view of the settled position of law reflected in catena of judgments, the petitioner’s arrest has to be declared as illegal. He would place reliance on the judgment of this Court in Mahesh Pandurang Naik Versus The State of Maharashtra & Another [Writ Petition (ST) No. 13835 of 2024 with Interim Application (ST) No.14637 of 2024] decided on July 18, 2024 which is based on the judgment of the Apex Court in Pankaj Bansal Versus Union of India & Others [2023 Live Law (SC) 844], wherein the scheme of Section 50 of the Code of Criminal Procedure and the fundamental right guaranteed under Article 22 of the Constitution of India are discussed. So as to substantiate the case, he would also draw support from the judgments in Prabir Purkayastha Versus State (NCT of Delhi) [Diary No.42896/2023] decided on May 15, 2024 and Dhanraj Aswani Versus Amar S. Mulchandani & Another [Criminal Appeal No.2501 of 2024], decided on September 09, 2024. As such, it is claimed that the arrest of the petitioner is required to be declared illegal being contrary to the scheme of Section 50 of the Code of Criminal Procedure, 1973 and the fundamental right guaranteed under Article 22 of the Constitution of India and as such remand order is also liable to be quashed.
6. As against above, the Additional Public Prosecutor appearing for the respondents would urge that the involvement of the petitioner was found through the accused nos.1 to 4 as these accused persons procured cough syrups in commercial quantity from the present petitioner. It is claimed that the petitioner has criminal antecedents. It is also urged that the petitioner was produced on transfer warrant issued by the Court of Judicial Magistrate First Class, Bhiwandi vide order dated January 30, 2024 which was then honoured by the Special Judge, N.D.P.S. Court, Haridwar vide order dated February 07, 2024. In such an eventuality, the scheme of Section 50 of the Code of Criminal Procedure, 1973 will not be attracted. It is claimed that the General Diary Entry dated February 11, 2024 speaks about the communication of the reasons of arrest to the petitioner. In such an eventuality, according to the Additional Public Prosecutor the petitioner cannot claim that he was not aware about the grounds of his arrest as this Court must infer that during the hearing of the production warrant and subsequent thereto, the petitioner was communicated about the reasons of arrest.
7. We have considered the rival claims.
8. The fundamental right guaranteed under Article 22 of the Constitution of India and the consequences of violation of such fundamental right has been dealt with by the Apex Court in Pankaj Bansal (supra). The Apex Court has held that Article 22(1) of the Constitution of India mandates that a person arrested shall be communicated the grounds of arrest without further delay as such delay results in infringing the fundamental rights of the arrested person. It has further held that the mode of conveying the information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. The communication of the grounds of arrest as mandated by Article 22(1) of the Constitution of India is meant to serve the higher purpose viz. making arrested person aware of the grounds on which the authorized officer has arrested him or her. The grounds of arrest are required to be furnished to the arrested person as a matter of course in writing and without exception, as oral communication of grounds of arrest may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard. The Apex Court has further held that the purpose of communicating the grounds of arrest in writing to the arrested person is not only with an intention to apprise the arrested person of why he is being arrested but also to enable such person to seek legal counsel and to facilitate effectively presenting the case before the Court.
As such, the Apex Court in categorical terms has held that the purpose of informing the grounds of arrest to the arrested person is salutary and sacrosanct as this information would be the only effective means for the arrested person to consult to his Advocate, oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right, guaranteed under Article 22(1) of the Constitution of India. The Apex Court has also noted that an attempt to violate the fundamental rights guaranteed under Articles 20, 21 and 22 of the Constitution of India would have to be dealt with strictly as the life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with, except under the authority of law. The Apex Court in Prabir Purkayastha (supra) in paragraph 29 has observed that even if the ‘grounds of arrest’ or ‘detention’ are not in express terms required to be communicated in writing as provided under Article 22(1) or 22(5) of the Constitution of India, but the interpretation of the importance of the fundamental right requires that the same be communicated in writing and failure of which would lead to custody or detention being rendered illegal, as the case may be. In the aforesaid decision, the Apex Court has also dealt with the significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The Apex Court has held that the ‘reasons for arrest’ would commonly apply to any person arrested on charge of a crime whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which had necessitated the arrest of the accused. The grounds of arrest speak of the necessity to arrest the accused and such grounds must be conveyed in writing to the arrested person so as to make him aware about all the basic facts on which he was being arrested so that he gets an opportunity of defending himself against the custodial remand and to seek bail.
9. While following the aforesaid principle, the Division Bench of this Court in Mahesh Pandurang Naik (supra) has held that an attempt to encroach upon the fundamental rights guaranteed under Articles 20, 21 and 22 of the Constitution of India would be looked at with all seriousness and to be dealt with strictly as the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of such fundamental right would vitiate the process of arrest and remand.
10. The petitioner who is shown to be accused no.5 was in the custody of Uttarakhand Police. He was arrested on February 11, 2024, before which the production warrant was prayed by the Court of Judicial Magistrate First Class, 11th Court, Bhiwandi on January 30, 2024. Said production warrant was consequentially endorsed by the Court of Additional Sessions Judge, Haridwar vide order dated February 07, 2024.
11. The General Diary Entry dated February 11, 2024, i.e. after the petitioner’s custody was obtained from Haridwar jail on February 11, 2024 mentions about the communication of the reasons of arrest and his right to claim bail. However such unilateral entry does not confirm acknowledgment in writing from the accused to that effect. The remand application dated February 11, 2024 further speaks of similar mention of the communication of reasons of arrest. However, we fail to understand as to what prompted the respondents not to produce on record the written communication served on the petitioner thereby informing him about the grounds of arrest. Failure of the respondents to above effect prompts this Court to draw adverse inference against the respondents.
12. Though the learned Additional Public Prosecutor has tried to justified the claim of communication of grounds of arrest to the accused so also the reasons based on the contents of the production warrant which are issued by the Court of Judicial Magistrate First Class, 11th Court, Bhiwandi and also the production warrant granted by the Additional Sessions Court, Haridwar, there is no iota of material to infer that the petitioner at any point of time was communicated in writing about the grounds of his likely arrest or post arrest the grounds for which he was arrested. Merely because the respondents have mentioned in its record that the grounds of arrest or reasons of arrest were communicated to the petitioner or any of his blood relations, that by itself cannot be said to be in conformity with the mandate provided under Article 22(1) of the Constitution of India. In support of the aforesaid observations, reliance can be placed on the findings recorded by the Apex Court in Pankaj Biswas (supra), which are already discussed hereinabove.
Even though it is claimed by the learned Additional Public Prosecutor that while processing the request for production warrant, the petitioner was made aware about the grounds of arrest, we hardly see any such mention of grounds of arrest in the production warrant which was duly served on the petitioner. Rather there is a specific dispute to the aforesaid effect as has been raised by the petitioner and in such an eventuality, we are guided by the mandate of the Apex Court in Pankaj Biswas (supra). The Apex Court in the above judgment in categorical terms observed that the communication of the grounds of arrest to the arrested person must be in writing and that too at the earliest opportunity.
13. As such, the contentions canvassed by the counsel for the petitioner that there was a failure on the part of the respondents to communicate the grounds of arrest to the petitioner can be inferred in view of the respondents being unable to produce on record the written communication of grounds of arrest to the petitioner. In that view of the matter, the petitioner in our opinion, is entitled to be admitted to bail.
14. As such, the criminal writ petition stands allowed. We hereby direct that the petitioner be released on bail on furnishing P.R. Bond in the sum of Rs.50,000/- with one or two sureties in the like amount in Crime No.221 of 2023 registered with Bhoiwada Police Station, Thane. While releasing the petitioner in Crime No.221 of 2023 punishable under Sections 8(K), 22(K) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 18(K), 18(A) punishable under Section 27(B) and 28(A) of the Drugs and Cosmetics Act, 1940, the respondents shall be sensitive to the conditions of the production warrant issued by the Special N.D.P.S. Judge, Haridwar vide order dated February 07, 2024.
