Non-compliance with arrest procedure and statutory requirements under NDPS cannot alone invalidate prosecution; however, substantial evidence is necessary, especially for bail under Section 37.

ORDER :

Ramesh Chand Malviya, J.

Heard Mr. Prasoon Shekhar learned counsel on behalf of petitioner assisted by Mr. Rajesh Kumar and Mr. Sanchay Srivastava, Senior Standing Counsel on behalf of Union of India assisted by Junior Standing Counsel Mr. Ankit Kumar Singh and Mr. Sushant Srivastava.

2. As per prosecution case, on 02.11.2023 Mithun Bhardwaj, Intelligence Officer, DRI, apprehended four persons namely, Apu Shuklabaidya, Ajit Bora, Madan Dey and Amit Kumar on the basis of a specific information near Durga mandir outside Hajipur Railway Station, Bihar. During search, six packets of heroin concealed in six soap cases were recovered from the possession of Apu Shuklabaidya, 13 packets of heroin concealed in 13 soap cases were recovered from the possession of Ajit Bora and six packets of heroin concealed in six soap cases were recovered from the possession of Madan Dey. On weighing, net weight of the heroin came around to 306.70 grams. All the four accused persons in their statements under Section 67 of NDPS Act admitted their guilt of conscious possession, carriage and transportation of the seized heroin in lure of money. Accordingly, search-cum-seizure list has been prepared and the present case has been registered under Section 21, 23 and 29 of NDPS Act against all accused persons.

3. Learned counsel for the petitioner submitted that petitioner has been falsely implicated in this merely on the basis of suspicion. He next submits that in the arrest memo dated 03.11.2023 against the ground of arrest at serial no. 9, it has been mentioned ‘ganja ki taskari’. Hence, the ground besides being contradictory to the case of the DRI in the complaint cannot be the cogent reason for the arrest/detention of the petitioner. He next submits that petitioner was arrested in a routine and casual manner without recording reasons as necessitated by law. For this, he relied on the judgment of Prabir Puryakastha v. State (NCT of Delhi), 2024 SCC OnLine SC 934 wherein the Apex Court held that:

20. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult 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 language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the ‘grounds’ of “arrest” or “detention”, as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar the requirement to communicate the grounds of arrest is concerned.

30. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case