Non-compliance with non-communication of arrest grounds is inapplicable retrospectively; independent witness requirement is not absolute in NDPS cases.

JUDGMENT :

G. Satapathy, J.

1. This is a bail application U/S.483 of BNSS by the petitioner for grant of bail in connection with PR No. 111 of 2025-26 of OIC, Excise Station, M.Rampur corresponding to 2(a) CC Case No. 25 of 2025(NDPS) pending in the file of learned Special Judge, Kalahandi, for commission of offences punishable U/Ss.20(b)(ii)(C) of the NDPS Act, on the main allegation of possessing 146Kgs 960Grams of Contraband Ganja and trying to transport it in a Maruti Suzuki car bearing Regd. No. OD-02-BN-9881.

2. In the course of hearing, Mr. Satya Narayan Mishra-4, learned counsel for the petitioner submits that there is clear cut infraction of compliance of provision of Sec.47 of BNSS / Article 22(1) of the Constitution of India and thereby, the petitioner is entitled to bail on that score. Mr.Mishra further submits that since the investigating agency has involved one independent seizure witness for seizure of the Contraband article, the seizure of article in this case is vitiated and thereby, the petitioner is also entitled to grant of bail.

2.1. On the other hand, Mr.P.Satapathy, learned Addl. PP submits that after the decision of Apex Court in Mihir Rajesh Shah Vrs. State of Maharashtra ; (2026) 1 SCC 500 , the communication of grounds of arrest in writing has to be applied prospectively to the arrest and the decision of Mihir Rajesh Shah(supra) having rendered on 06.11.2025, but the present one demonstrate a case much prior to such decision and, therefore, the plea as advanced by the petitioner for grant of bail for non-communication of grounds of arrest in writing is of no avail to the petitioner. Mr.Satapathy further submits that the involvement of only one seizure witness has nothing to do with the merit of the case, since the other official seizure witnesses are also available to the case at hand and thereby, the petitioner’s bail application may kindly be rejected, more particularly when he has failed to satisfy the conditions of Sec. 37 of NDPS Act.

3. After having considered the rival submissions upon perusal of record, it undoubtedly appears to the Court that the petitioner has set up the plea for grant of bail for non-compliance of the provision of Sec.47 of BNSS / Article 22(1) of the Constitution of India, but law has been fairly well settled in Mihir Rajesh Shah(supra), wherein the Apex Court in Paragraph-68 has held as under:-

68. We are cognizant that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an effective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests henceforth.”

4. Applying the facts of the present case, it appears that the present case was detected much prior to 06.11.2025 when the judgment in Mihir Rajesh Shah(supra) was rendered and thereby, the plea as advanced by the petitioner for grant of bail for non- compliance of provision of Sec.47 of BNSS / Article 22(1) of the Constitution of India is not available to the petitioner in the present case. Accordingly, such plea merits no consideration.

5. On coming back to the next plank of submission about non-involvement of two independent seizure witnesses, it appears that the search and seizure in NDPS case is either governed by Sec. 42 or 43 of NDPS Act where it is not mandated that search and seizure must be associated with two inde