A Division Bench of Justice Rajeev Ranjan Prasad and Justice Sunil Dutta Mishra was hearing an appeal under Section 21(4) of the National Investigation Agency Act, 2008 against the rejection of regular bail in an NIA case concerning alleged circulation of counterfeit Indian currency.

The prosecution case arose from a police interception on 05.09.2024 near Kharwa Pool in East Champaran. Three persons travelling on a motorcycle were allegedly found carrying fake Indian currency notes. The investigation was subsequently transferred to the NIA by an order of the Ministry of Home Affairs dated 10.12.2024.

The appellant, who was arrayed as accused no. 4, was not arrested at the spot. The charge-sheet alleged that his mobile phone contained PDF files relating to counterfeit currency, incriminating voice clips, photographs and contact details of suspected persons and chats concerning procurement and supply of fake Indian currency notes. The appellant claimed that his interactions with the co-accused were merely through social media and had resulted in a business relationship.

The appellant specifically challenged his arrest on the ground that he had never been furnished the grounds of arrest in writing. At the time of hearing, the NIA also conceded that no written grounds of arrest appeared to have been furnished to him, although reliance was placed on paragraph 7 of the arrest memo.

Importantly, the trial had already commenced, but only 3 out of 91 witnesses had been examined. The appellant therefore also submitted that the trial was unlikely to conclude in the near future.

The High Court examined the requirement of communicating the grounds of arrest in the context of Article 22 of the Constitution and Section 50 of the Cr.P.C., referring to the Supreme Court's decisions in Pankaj Bansal v. Union of India, Ahmed Mansoor v. State, Dr. Rajinder Rajan v. Union of India and Mihir Rajesh Shah v. Union of India. The Court held:

“The constitutional mandate and the statutory mandate as contained under Article 22 of the Constitution of India and Section 50 of the CrPC leave no room for doubt that it would be necessary for the investigating agency/arresting authority, that a copy of the written grounds of arrest is furnished to the arrested person as a matter of course and without exception.”

The Court specifically rejected reliance on a standard-form arrest memo stating that the grounds had been explained to the accused, holding:

“Templates of the arrest memo containing the statement to the effect that the arresting officer explained the grounds of arrest to the accused before the arrest, is no compliance with the mandate of Article 22 of the constitution of India read with section 50 and 50A of the Code of Criminal Procedure (Now Sections 47 and 48 of the BNSS).”

The Court further held that a mere proforma statement in the arrest memo that the grounds of arrest had been conveyed would not constitute compliance with the Supreme Court's decisions in Ahmed Mansoor and Dr. Rajinder Rajan.

The Bench also distinguished the Supreme Court's decision in State of Karnataka v. Sri Darshan, where the Court had found that the accused were aware of the reasons for their arrest and had not demonstrated prejudice. In the present case, the State had failed to produce any document showing that the appellant had actually been furnished the grounds of arrest in writing.

The Court further noted, relying on Mihir Rajesh Shah, that the grounds of arrest must be communicated in writing within a reasonable time and, in any event, at least two hours before production of the arrested person for remand. The Court recorded:

“In the present case, the respondent has failed to demonstrate that the ground(s) for arrest/detention have been furnished in writing. Even as time was granted to the respondent, no document showing service of grounds of arrest in writing has been placed before this Court.”

Holding the arrest to be in breach of the constitutional and statutory mandate, the High Court set aside the order of the Special Court and directed that the appellant be released on bail.

Appearance:

For the Appellant: Md. Tahir, Advocate; Mr. Kundan Kumar Ojha, Advocate; Mr. Navneet Prabhakar, Advocate

For the NIA: Dr. Krishna Nandan Singh, ASG; Mr. Arvind Kumar, Advocate; Mr. Tirupati Gaura; Ms. Angel