Orissa High Court · 2026

Judgment

20.08.2026 (ORAL) G. Satapathy, J.

1. This is a bail application U/S.483 of BNSS by the petitioners for grant of bail in connection with OIC of Excise Station, Sonepur PR Case No. 145 of 2025-26 corresponding to 2(a)CC Case No.30 of 2025 pending in the file of learned Special Judge, Sonepur, for commission of offences punishable U/S. 20(b)(ii)(C) of the NDPS Act, on the main allegation of transporting 92Kgs 400Grams of Contraband Ganja in a TATA Truck bearing Regd. No. MH-28-BB-2223. BLAPL No. 3214 of 2026

Heard, Mr. Sitikant Mishra, learned counsel for the petitioners and Mr. M.R. Patra, learned Addl. PP in the matter and perused the record.

3. After having considered the rival submissions upon perusal of record, it appears that the main ground for grant of bail to the petitioners as advanced is for non-compliance of Sec.47 of BNSS r/w. Article 22(1) of the Constitution of India. This Court is never in doubt that a person arrested cannot be detained in custody without informing of his grounds of arrest as soon as the person is arrested, but the mode and manner of communication of grounds of arrest has neither been described in Article 22(1) of the Constitution of India, nor prescribed in Sec.47 of BNSS, however, it has been made clear by the judgment law. In Mihir Rajesh Shah Vrs. State of Maharashtra; (2026) 1 SCC 500, the Apex Court at paragraph-66.2 makes it mandatory for informing the grounds of arrest to the arrestee in writing in the language he understands, but it is also laid therein at paragraph-68 that the aforesaid procedure BLAPL No. 3214 of 2026 shall apply to the arrest prospectively. For clarity, the aforesaid observation as made in paragraph-68 in Mihir Rajesh Shah (supra) is quoted hereinunder:- “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 administration of criminal justice. The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests “henceforth.”

4. Additionally, the application of the aforesaid provision prospectively to the arrest has been reiterated in a very recent decision in State of Meghalaya Vrs. Sonam Raghuvanshi @ Bitti @ Bittu in SLP (CRL.) No.11944 of 2026, disposed of on 23.07.2026, wherein the Apex Court at paragraph-9 has held thus:- “9. Law is quite settled that serving of the grounds of arrest is mandatory. This has been introduced as a Judge made law vide a judgment of this Court in the case of Mihir Rajesh Shah (supra). That is the precise reason why this Court was pleased to hold that though such a procedure is not contemplated, nonetheless, it is so required in order to give BLAPL No. 3214 of 2026 effect to Article 22(1) of the Constitution of India. For the said reason, the decision to apply prospectively. was made Admittedly, respondent was arrested on 09.06.2025 much before the date of pronouncement of Mihir Rajesh Shah (supra).” the case on hand,

5. The arrest in this case was effected on

18.10.2025, but the judgment in Mihir Rajesh Shah (supra) was delivered on 06.11.2025 and, therefore, the arrest herein is prior to Mihir Rajesh Shah (supra). Even accepting Mihir Rajesh Shah (supra), the communication of the grounds of arrest in writing in the language the arrestee understands would apply to the arrest on and from 06.11.2025.

6. Even otherwise, accepting the contention of the petitioners for non-compliance of Sec.47 of BNSS, this Court considers it proper to refer again to the decision in Sonam Raghuvanshi (supra), wherein at paragraph-11, the Apex Court has held as under:- “11. xx xxx xxx xxx There is a fundamental difference between nonservice of grounds of arrest and non-furnishing of adequate reasons thereunder. While the first category might vitiate in the second category, one has to see the prejudice the arrest, BLAPL No. 3214 of 2026 caused to the accused. In the facts of the instant case, it is not as if the respondent was not served with the grounds of arrest. Hence, the case of the respondent falls within the second category discussed above.”

7. On coming back to the facts of the case, since the prosecution claims to have complied the provision of Sec.47 of BNSS by producing affidavits together with arrest memos and the copy of documents name and styled as “disclosure of grounds of arrest”, it appears to this Court that the case of the petitioners would come in the second category that inadequate compliance of Sec.47 of BNSS(non-furnishing of adequate reason thereunder) and, thereby, some prejudice has to be demonstrated by the petitioners to take the benefit of such provision, but in this case, although the petitioners were arrested on 18.10.2025, however, the petitioners have not taken such plea immediately or thereafter till the application which was filed for which the impugned order has been passed in this case on 10.03.2026 and, therefore, it is very clear that the petitioners must have been produced before the Court on many occasions, in between first remand and the date on which the BLAPL No. 3214 of 2026 petitioners took such plea of non-compliance, but no prejudice appears to have been established by the petitioners. Further, the petitioners must have been represented by a counsel before the learned trial Court at the time of remand and subsequent thereafter, but such plea of non-compliance has not been taken till it was taken, for which the impugned order was passed. No doubt, Mr. Mishra, learned counsel for the petitioner takes objection for non-compliance of the provisions by highlighting the certificate appended to the document “disclosure of grounds of arrest” for use of sentence “explaining the contents of disclosure in Oriya vernacular to the accused and the witnesses” as the petitioners were Marathi, it appears that the IO in his affidavits has clearly stated that he had personally informed the arrestees the grounds of their arrest and made them understand in Hindi by obtaining the signatures of the arrestees & witnesses on arrest memos and on the disclosure of grounds of arrest as prepared vide separate sheets and it is also stated by the IO in such affidavits BLAPL No. 3214 of 2026 that since the disclosure of grounds of arrest is a printed form, inadvertently the word “Oriya” could not be corrected. The aforesaid explanation does not appear to be improbable or in genuine, however, even considering the aforesaid plea of the petitioners, they have to show prejudice for this purpose. On the contrary, the memo of arrest and disclosure of grounds of arrest contain about the allegation and the reason for arrest of the arrestee together with particulars of the offences, for which the petitioners are arrested and both the documents contain the signatures of the petitioners in Hindi with necessary particulars. In view of the aforesaid facts and circumstances and even taking into consideration the plea of non-compliance of Sec.47 of BNSS as advanced for the petitioners, but no material being produced to show that the petitioners were in fact prejudiced in terms of the law laid down by the Apex Court in Sonam Raghuvanshi (supra), this Court does not find any merit on the plea of the petitioners for non-compliance of Sec.47 of BNSS as a ground for grant of bail to them. BLAPL No. 3214 of 2026

8. On coming to the plea of the bail of the petitioners on merit, there appears allegation against the petitioners transporting 92Kgs 400Grams of Contraband Ganja, which is coming under commercial quantity, but in order to become successful in securing liberty in a case like this, the petitioners have to satisfy the conditions of Sec.37 of NDPS Act. In the present facts and situation and taking into consideration the materials so placed on record and regard being had to the recovery and seizure of 92Kgs 400Grams of Contraband Ganja the vehicle allegedly occupation of the petitioners, this Court hardly finds the petitioners to have satisfied the conditions of Sec.37 of NDPS Act, which is sine qua non for grant of bail for commission of offence under NDPS Act involving commercial quantity and thereby, the petitioners are also not entitled to bail on merit.

9. Hence, the bail application of the petitioners’ stands rejected. Accordingly, the BLAPL stands disposed of. Looking at the custody period and submission of BLAPL No. 3214 of 2026 charge sheet in the meantime, it is open to the petitioners to renew their prayer for bail after examination of material witnesses. A copy of this order be immediately transmitted to the learned Court in seisin over the matter. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 20th day of August, 2026/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Aug-2026 19:30:51 BLAPL No. 3214 of 2026