Hanuman Choudhary Vs State of Maharashtra (Bombay High Court)
Summary: The Bombay High Court, comprising Justice Nitin W. Sambre and Justice Manjusha Deshpande, allowed the writ petition filed by Hanuman Choudhary challenging his arrest in connection with FIR No. 131 of 2024 dated 24 March 2024, registered at Ravet Police Station, Pimpri-Chinchwad, Pune, under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner alleged that his arrest was effected without complying with Article 22(1) of the Constitution, Section 50 of the Code of Criminal Procedure, 1973, and Section 52(1) of the NDPS Act. The principal issue was whether a memorandum panchanama prepared during investigation, bearing the petitioner’s signature, could constitute legally sufficient communication of the grounds of his arrest.
The prosecution alleged that on 23 March 2024 the Anti-Narcotic Cell intercepted Rohit Surat Singh, the first accused, and recovered 24 grams of mephedrone from him. During police custody, the first accused allegedly disclosed the source of the drug and led officers to the petitioner’s shop. The prosecution stated that the petitioner admitted possessing additional mephedrone and that a search conducted in the presence of panch witnesses resulted in recovery of 30 grams from his trouser pocket on 26 March 2024. The petitioner was detained and subsequently arrested, produced before the Magistrate and remanded to police and later judicial custody. His application for bail was rejected, and a charge sheet was subsequently filed. The High Court did not adjudicate the truth of the prosecution allegations but examined the procedure adopted during arrest.
The petitioner contended that neither the particulars of the offence nor the factual grounds necessitating his arrest had been communicated as required by law. He relied upon the Supreme Court judgments in Pankaj Bansal Vs Union of India and Prabir Purkayastha Vs State (NCT of Delhi), alongside the Bombay High Court decisions in Manulla M. Kanchwala and Mahesh Pandurang Naik. The petitioner maintained that failure to communicate the grounds of arrest deprived him of an effective opportunity to consult counsel, oppose custodial remand and seek bail.
The State opposed the petition through an affidavit of Assistant Police Inspector Sachin Kadam. It asserted that the petitioner had been informed in Hindi about his rights under Section 50(1) of the NDPS Act, had signed the relevant documents and had received a copy of the memorandum panchanama. The State maintained that the panchanama described the circumstances leading to recovery of the drugs and that the petitioner’s signature acknowledged receipt of information sufficient to constitute grounds of arrest. It further relied upon entries in the station diary, the preparation of an arrest form and communication of the arrest to the petitioner’s wife.
During the proceedings, the High Court examined the distinction between the memorandum panchanama prepared at the instance of the first accused and the independent grounds for arresting the petitioner. The Court also considered the timing discrepancies between the detention and arrest documents. An earlier order dated 20 September 2024 recorded uncertainty concerning the signatures on the panchanama and sought clarification. It was subsequently clarified that the petitioner’s signature appeared on the memorandum. The Court nevertheless held that mere acknowledgement of a panchanama did not establish that he had been informed of the factual grounds necessitating his arrest.
Referring to Section 50 CrPC, Section 52(1) of the NDPS Act and Article 22(1) of the Constitution, the High Court held that communication of grounds of arrest was a distinct mandatory obligation. It reproduced paragraph 49 of Prabir Purkayastha, distinguishing general reasons for arrest from the specific facts and material that justify arrest of a particular person. The Court found that the memorandum panchanama recorded the first accused’s disclosure and the consequent search and seizure but did not supply the petitioner with the basic facts constituting the grounds of his arrest. The petitioner’s signature could not transform a seizure-related document into the constitutionally required communication.
The High Court concluded that the arrest violated the constitutional safeguards under Articles 21 and 22, the requirements of Section 50 CrPC and Section 52(1) of the NDPS Act. It declared the arrest illegal and set aside the remand order dated 27 March 2024 and all subsequent remand orders passed by the Judicial Magistrate First Class, Vadgaon Maval, Pune. The petitioner was held entitled to release upon furnishing bail bonds to the satisfaction of the trial court. Both the writ petition and Rule were disposed of accordingly, without any final determination of the petitioner’s guilt in the underlying NDPS proceedings.
Cases Discussed
1. Pankaj Bansal Vs Union of India and Ors. (Supreme Court); Criminal Appeal Nos. 3051–3052 of 2023; 03/10/2023; 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Cited by the petitioner regarding the obligation to communicate grounds of arrest and the constitutional safeguards governing deprivation of 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 — Relied upon by the High Court for the distinction between reasons and grounds of arrest, particularly the requirement to communicate accused-specific factual material.
3. Manulla M. Kanchwala Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition No. 3276 of 2024 — Cited by the petitioner concerning alleged non-compliance with statutory and constitutional safeguards during arrest.
4. Mahesh Pandurang Naik Vs State of Maharashtra (Bombay High Court); Criminal Writ Petition (Stamp) No. 13835 of 2024; 18/07/2024 — Cited by the petitioner concerning the consequences of failing to communicate specific grounds of arrest.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
1. Rule. Rule made returnable forthwith, with the consent of the parties.
2. The petitioner in this Writ Petition is seeking declaration that his arrest is illegal and in gross violation of the fundamental rights guaranteed to him under Article 21 and 22 of the Constitution of India, in relation to FIR No. 131 of 2024 dated 24.03.2024, registered at Ravet Police Station, Pimpri-Chinchwad, Pune, for the offence punishable under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act, 1985).
3. It is the contention of the petitioner that FIR bearing C.R. No. 131 of 2024 came to be registered at Ravet Police Station, Pimpri-Chinchwad for offence under the NDPS Act, 1985 against the Accused No. 1 Rohit Surat Singh. On 23.03.2024 at 19:45 hours, while the narcotic drugs squad and other police offcers were patrolling near Pimpri-Chinchwad, suspecting the behaviour of Accused No. 1, who was driving an Activa Scooty, was stopped and upon questioning he has given evasive answers. Therefore when he tried to fee he was apprehended. When he was questioned, he admitted that he was in possession of Mephedrone (MD) drug. The concerned police authorities have conducted search and seized 24 grams Mephedrone (MD) drugs from the body of the Accused No. 1. Accused No. 1 was charged under Section 8(c) and 22(b) of the NDPS Act, 1985.
During his police custody on 26.03.2024, Accused No. 1 has given memorandum statement and has given his willingness to show the place from where he had obtained the Mephedrone (MD) drugs. The police authorities alongwith Accused No. 1 and panch witnesses proceeded to the location. Upon reaching the location, the offcers introduced themselves to the petitioner in a shop owned by him. Upon enquiry being made by the police offcers, the petitioner has admitted and has stated that, he had more Mephedrone (MD) drug in his pant pockets. Upon his admission, search of his person was taken in presence of panch witnesses and 30 grams of Mephedrone (MD) drug was recovered from the left pocket of his pants. The police after conducting seizure panchanama as per the prescribed procedure of law, sealed the parcel. The petitioner was informed that his action constituted a cognizable offence under the NDPS Act, 1985 and he was detained at 21:20 hours on 26.03.2024.
4. The petitioner contends that he was thereafter taken to the Vadgaon Maval Police Station, when once again it was confrmed that the Mephedrone (MD) drug came from his possession. The petitioner was thereafter produced before 6th Court of Judicial Magistrate First Class at Vadgaon Maval, Pune on 27.03.2024. The police custody remand was granted till 30.03.2024. He was thereafter placed in MCR until 12.04.2024 and his Bail Application has been rejected by the Additional Sessions Judge, Vadgaon, Pune on 19.07.2024.
5. On the basis of the background as stated hereinabove, the petitioner has approached this Court invoking Article 21 and 22(1) of the Constitution of India by way of the present Writ Petition invoking Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973.
6. According to the petitioner, his arrest is totally in breach of constitutional and procedural safeguards. While conducting his arrest there is a breach of Section 50 of the Cr.P.C, which mandates that the arresting offcer must inform the arrested individual of the grounds for his arrest. The failure to do so constitutes a clear violation of the individual’s constitutional rights and the procedural safeguards established by law. It is also contended by the petitioner that his detention is also illegal on account of non-adherence to the procedural safeguards, such as non-adherence to Section 52(1) of the NDPS Act, 1985, which mandates the arresting offcer must inform the arrested individual, of the grounds for his arrest. This failure constitutes a clear violation of the petitioner’s statutory rights and the procedural norms established by law.
7. It is also contended by the petitioner that his arrest and detention has also violated Article 22 of the Constitution of India, which requires an individual to be informed of the grounds of arrest and to be allowed to consult a legal practitioner. The failure to provide this information has deprived him, of his legal right to legal representation and a fair defence. The petitioner has also relied on Section 50 of the Cr.P.C., which mandates that, when an individual is arrested without warrant, the concerned offcer shall forthwith communicate to him full particulars of the offence for which he is arrested.
8. The petitioner has relied on the following authoritative judicial pronouncements of the Hon’ble Apex Court as well as this Court:
(i) Pankaj Bansal V/s Union of India and ors.1
(ii) Prabir Purkayastha V/s State (NCT of Delhi)2,
(iii) Manulla M. Kanchwala V/s. The State of Maharashtra3
(iv) Mahesh Pandurang Naik V/s. State of Maharashtra4
The petitioner has relied on the aforesaid decisions in order to illustrate that, non-adherence to the prescribed procedure of law has resulted in violation of the fundamental rights guaranteed to him under the Constitution of India. The petitioner has also placed on record the comparative table of the present case with the facts and law of the reported judgments which are referred hereinabove. On this background, the petitioner has approached this Court seeking declaration that his arrest is illegal and he should be released forthwith.
9. After notice was issued to the respondent – State, the respondent – State has fled their reply affdavit sworn by Assistant Police Inspector, Mr. Sachin Kadam attached to the Anti Narcotic Cell, Crime Branch, Pimpri-Chinchwad. In the reply affdavit fled by the concerned authority, the Detaining Authority has stated that, when Accused No. 1 was arrested on suspicion and he was found to be in possession of the narcotic drug Mephedrone (MD), he was interrogated by the concerned offcers and during his police custody he has revealed that he is ready to show the place from where he has obtained the drug. The memorandum panchanama under Section 27 of the Indian Evidence Act, 1872 was conducted. According to the statement given by Accused No. 1, the Investigating Offcer alongwith Accused No. 1 proceeded as per the direction given by Accused No.1. Upon reaching the place where Accused No. 2 i.e. the petitioner was present, when inquiry was made with the petitioner, he has accepted that he is in possession of drugs. On such confession being made, he was made aware about his right under Section 50(1) of the NDPS Act, 1985 in Hindi language, which is known to him. Thereafter a detailed letter of his rights was also prepared in Hindi language and signed by API, which is handed over to the petitioner. Before search was conduct, the petitioner was made aware about his legal right to conduct his personal search in presence of panchas, to which he has responded stating that, “I understood my rights, the police can search me and my shop”.
During the personal search of the petitioner, a transparent small plastic bag containing 30 grams of a white powder of Mephedrone (MD) was found. The said substance was found in stapled small bag in the left pocket of the trouser of the petitioner. The said substance was sealed and seized adhering to the provisions of the NDPS Act, 1985, on the spot in the presence of two panch witnesses. It is further stated in the affdavit that, the panch witnesses and API, who were present have affxed their signatures on the memorandum panchanama dated 26.03.2024.
10. It is contended by the learned APP that investigating machinery has complied with Section 50(1) of the NDPS Act, 1985 and Section 50 of the Cr.P.C. The entry in the station diary to that effect is also taken.
11. It is the contended by the learned APP that, since the offence under the provisions of NDPS Act constituted a cognizable offence, the Investigating Agency detained him at 21:20 hours on 26.03.2024 and, thereafter, the Investigating Agency brought him before the Senior Police Inspector Mr. Kumar Kadam attached to Vadgaon Maval Police Station. It is contended that the petitioner was arrested on 26.03.2024 after following due procedure of law as well as in accordance with the guidelines of the Hon’ble Apex Court. It is categorically stated that the grounds of arrest have been informed to the petitioner at the time of arrest. Considering the graveness of the offence, the Special Court has rejected the Bail Application on 19.07.2023 and 18.04.2024. Charge-sheet is also fled in the matter on 13.06.2024 before the learned Special Court under the NDPS Act, 1985 at Vadgaon Maval. Since the petitioner was found with non-commercial quantity i.e. above 2 grams and below 50 grams, the petitioner was arrested.
Though it is the contention of the petitioner that there is non-compliance of Section 50 of the Cr.P.C. and Section 52(1) of the NDPS Act and there is a violation of fundamental right guaranteed under Article 21 and 22 of the constitution. It is stated by the Detaining Authority that, while arresting the petitioner, seizure panchanama was drawn on the spot of incident by the Investigating Agency and the reasons for inquiry was clearly communicated to the petitioner. It is further mentioned by the Detaining Authority in his affdavit that before arresting the petitioner, the arrest form of the petitioner was duly flled in by API Mr. Gaikwad, in presence of two panchas and the petitioner has also signed the said arrest form. After arresting the petitioner, information was given to his wife and entry in the station diary is also taken to that effect. The offence being registered under the provisions of NDPS Act, which is a special enactment, the procedure as provided in the special enactment was followed.
12. According to the learned APP it is settled position of law that, fundamental rights guaranteed under the Constitution of India, are of paramount importance and, therefore, every possible care should be taken to ensure compliance of the same. Hence in the light of the observations of the Hon’ble Apex Court, the grounds of arrest of the petitioner which were required to be provided to him in writing have been made available through memorandum panchanama dated 26.03.2024. According to the Investigating Offcer, the panchanama prepared by the Investigating Agency satisfes the aforementioned requirements, as such the memorandum panchanama was handed over to the petitioner at the time of his arrest and the same contains the signature of panch witnesses alongwith the petitioner himself, acknowledging the receipt of the same, which amounts to communication of the grounds of arrest. The said document i.e. memorandum panchanama is self explanatory and the arrest of the petitioner does not become illegal.
Hence relying on the memorandum panchanama dated 26.03.2024 the Respondent Authorities are trying to contend that the memorandum panchanama on which the signature of the present petitioner has been obtained is nothing less than the communication of grounds of arrest.
13. When the said reply affdavit was fled and the matter was heard for some time, we had passed an order on 20.09.2024 observing thus:
“In response to the challenge of the arrest being effected without furnishing the grounds for arrest, the learned APP Mrs. Deshmukh, has relied upon the memorandum form under Section 27 of the Indian Evidence Act, executed when Rohit Surat Singh, one of the accused was arrested on 24/03/2024. By reading the said panchanama, it is her contention that the present petitioner was taken into custody on 26/03/2024, at 21:20 hrs and he was confronted with the contraband (Mephedrone (MD), which was recovered and he admitted this substance to be belonging to him. However, when we perused his arrest panchanama, it has refected his arrest to be at 23:15 hrs on 26/03/2024, and therefore, the ground raised in defence of the challenge to the arrest, being that he was aware of the grounds of arrest as he was confronted that the contraband falls to its ground. In addition, the learned APP is unable to assertively state as to which of the accused has put his signature on the Panchanama.
We expect a clarifcation to be offered on the said point, list on 25/09/2024.”
The learned APP was also unable to state as to whose signature was put on the panchanama, therefore seeking clarifcation on the point the matter was adjourned to 25.09.2024.
When the matter was heard today, the only thing which was clarifed is that the memorandum panchanama dated 26.03.2024 holds the signature of the petitioner. The said fact is not disputed by either of the parties.
14. In view of the same, we are required to decide whether the memorandum panchanama, which is conducted at the instance of Accused No. 1 Rohit Surat Singh, during which the possession of the drug by the present petitioner has been revealed, can be equated with communication of grounds of arrest.
15. According to the learned APP, the said memorandum panchanama which is conducted at the instance of Accused No. 1, wherein involvement of Accused No. 2 (petitioner) has been revealed and the signature of the petitioner has been obtained on the panchanama amounts to communication of ground of arrest. According to the learned APP, the petitioner is also having criminal antecedents, therefore his Bail Application has been rejected. The grounds of arrest were made known to the present petitioner in the remand application and communication about his arrest to the near relative is in compliance of the directions issued by the Hon’ble Apex Court. The near relative of the petitioner has been informed about his arrest, therefore, there is no illegality or irregularity in the arrest of the petitioner and, therefore, the Petition deserves to be dismissed.
16. We have heard the respective counsel and we have also gone through the annexures to the Writ Petition as well as the reply affdavit fled by the Detaining Authority. Since the reliance is categorically placed on the memorandum panchanama, to demonstrate that the grounds of arrest have been communicated to the petitioner, upon going through the same it discloses that, the said memorandum panchanama was conducted on 26.03.2024 at 18:10 hours to 21:45 hours and the arrest is shown to be made on 26.03.2024 at 23:15 hours.
17. Section 50 of the Cr.P.C. reads thus:
“50. Person arrested to be informed of grounds of arrest and of right to bail.- (1) Every police offcer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police offcer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”
Similarly, Section 52(1) of the NDPS Act, 1985 provides thus:
“52. Disposal of persons arrested and articles seized.- (1) Any offcer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.”
Similarly, Article 22(1) of the Constitution of India mandates as follows:
“22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
18. The above referred three provisions require communication of the grounds of arrest to a person with full particulars of the offence as early as possible. So far as grounds of arrest is concerned, there is a distinction between ‘grounds of arrest’ and ‘reasons of arrest’. The settled difference between two has been explained by the Hon’ble Apex Court in para 49 of the judgment in case of Prabir Purkayastha V/s State (NCT of Delhi) (supra), which reads thus:
“49. It may be reiterated at the cost of repetition that there is a signifcant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Offcer. These reasons 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 Offcer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the ‘grounds of arrest’ would invariably be personal to the accused and cannot be equated with the ‘reasons of arrest’ which are general in nature.”
19. Considering the above explanation if we go through the memorandum statement of Accused No. 1, the frst thing which strikes us is that, though it is the memorandum statement by Accused No.1, the signature of Accused No. 2 i.e. the present petitioner has been obtained on it. After going through the same, it does not contain the grounds of arrest for which the petitioner has been arrested. It does not meet the requirement of the provisions of various enactments as referred hereinabove and it fails to meet the requirement of the ‘grounds of arrest’, which has been explained in para 49 of the judgment in case of Prabir Purkayastha (supra). It does not contain the information in writing to the petitioner, of the basic facts and the basis on which he is being arrested, so as to provide him an opportunity of defending himself against the custodial remand and seek bail. The memorandum panchanama form, contains details about statement made by the accused in presence of two witness while in custody, pursuant to which the procedure is undertaken by the Detaining Authority, at the instance of Accused No. 1, whereby he has taken the Detaining Authority to the place where Accused No. 2 (Petitioner) was conducting his business. The personal search of Accused No. 2 was taken, wherein 30 grams of Mephedrone (MD) drug was seized. Therefore, the search and seizure of the drug which was done by the Detaining Authority pursuant to the memorandum panchanama, can by no stretch of imagination be termed as a communication or ‘grounds of arrest’ to the petitioner as contemplated in law.
20. There are catena of decisions of the Hon’ble Apex Court as well as this Court, whereby non-communication of grounds of arrest, to the accused was held to be violative of fundamental right of a person, guaranteed under Article 21 and 22 of the Constitution of India, as well as in breach of safeguard provided under Section 50 of the Cr.P.C.
In the present case which is governed by the NDPS Act, 1985, Section 52(1) of the said Act also contemplates communication of grounds of arrest to the accused, who is being arrested under Sections 41, 42, 43 or 44 of the said Act. Since the mandatory provisions of the Constitution as well as the special enactment have not been adhered to by the Detaining Authority, in our view, the arrest of the petitioner and the subsequent remand orders cannot be sustained being violative of the provisions of law as well as against the authoritative pronouncements of the Hon’ble Apex Court as well as this Court. Resultantly, we pass the following order:
ORDER
(i) The Writ Petition is allowed.
(ii) It is declared that the arrest of the Petitioner in connection with FIR No.131 of 2024 dated 24.03.2024, registered with Ravet Police Station is illegal and in gross violation of the fundamental rights of the Petitioner guaranteed under Articles 21 and 22 of the Constitution of India.
(iii) The subsequent remand order dated 27.03.2024 and all further subsequent orders passed by the learned 6th Joint Judicial Magistrate First Class, Vadgaon Maval, Pune are declared to be null and void, as the same being in violation of constitutional mandate as well as not in compliance of Section 50 of the Cr.P.C.
(iv) Upon setting aside the remand order, the Petitioner is entitled to be released from the custody on furnishing bail bonds to the satisfaction of the Trial Court.
(v) Rule is made absolute in the above terms.
Notes:
1 2023 SCC OnLine SC 1244 ↩
2 2024 SCC OnLine SC 934 ↩
3 Cri. Writ Petition No. 3276 of 2024 ↩
4 Cri. Writ Petition (Stamp) No. 13835/2024 ↩
