Investigating Officer Must Be Made Liable For Arrest Violating Article 22: Gauhati High Court Asks State To Sensitize Police

The Gauhati High Court has observed that unless steps are taken against investigating authorities for violating mandatory provisions on arrest, constitutional safeguards would continue to be violated and tinkered.

In allowing the bail application of an NDPS accused, Justice Kaushik Goswami observed:

"I would like to pen down my dissatisfaction and displeasure as regards the non-compliance of the constitutional requirement of informing the arrestee his right under Article 22 of the Constitution of India by the investigating/arresting authority whereby the constitutional court is left with no option but to grant bail even in cases of heinous and serious offence and cases under the Special Act etc. 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.

The case of the prosecution 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 investigation and upon such investigation found the accused/petitioner in his room and he 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.

Counsel for the petitioner submitted that the arresting authorities have not followed 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 the arresting authorities have not informed the grounds of arrest to the accused/petitioner at the time of arrest and hence, there is gross violation of Article 21 and 22 of the Constitution of India and also under Section 50 of the Criminal Procedure Code (hereinafter referred to as “Cr.P.C”) corresponding to Section 47 of the BNSS. 

Counsel submitted that such action of the police was violative of the Supreme Court's judgement in Prabir Purkayastha's case.

Upon considering the submissions of the parties, the court noted that when a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail.

Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands, it held.

Accordingly, the court granted bail and asked 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.

Case : Azibur Rahman @ Aziz @ Ajibur vs. State of Gauhati

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