Issuing Proclamation Without Proof of Absconding is Illegal: Gauhati High Court Quashes Arrest Orders in Drug Case

“Simultaneous Issuance of Non-Bailable Warrant and Proclamation is Contrary to Law”, Gauhati High Court set aside a non-bailable warrant of arrest (NBWA) and proclamation order issued against an accused in a 2009 drug seizure case, holding that the trial court had acted in “complete disregard of statutory safeguards” under the Bharatiya Nagarik Suraksha Sanhita (BNSS) and CrPC.

Justice Manish Choudhury, while allowing the criminal petition (Crl. Pet. No. 936/2025, Rajesh Barua v. State of Assam), found that the Trial Court at Kamrup had passed successive orders for issuance of NBWA and proclamation & attachment (P&A) without verifying whether the accused had actually absconded or whether the summons were ever served.

“The Court Must First Have Reason to Believe That the Person Is Absconding”: High Court Emphasises Sequential Safeguards Under Section 82 CrPC

The petitioner, Rajesh Barua, was charge-sheeted in a case (G.R. No. 115/2014, originally registered as Palashbari P.S. Case No. 169/2009) involving the seizure of 73 gunny bags filled with Phensedyl bottles from a truck in 2009. Though he was arrested and later granted bail, he returned to his native village in Tripura and later moved to Kerala for livelihood.

He contended before the High Court that after the 2010 charge-sheet, no summons were ever served on him, and he was unaware of any pending court proceedings. In February 2023, the Trial Court issued a non-bailable warrant of arrest along with a proclamation order under Section 82 CrPC, observing that the accused persons (including Barua) had failed to appear.

The High Court held that this violated a fundamental requirement under Section 82 CrPC:

“It is only after issuance of a warrant of arrest and subsequent non-execution that a proclamation can be published… It was not permissible for the Trial Court to simultaneously issue warrant of arrest and proclamation,” observed the Court.

Relying on the Supreme Court's ruling in Srikant Upadhyay v. State of Bihar, (2024 SCC OnLine SC 282), the Court reiterated that:

“To reach a satisfaction that a person is absconding, evidence is required that he was aware of the warrant and was intentionally avoiding it.”

In Barua’s case, there was no material to prove that he knew of any warrant against him or that he had tried to conceal himself.

“Personal Liberty Cannot Be Casualty of Mechanical Issuance of NBWAs”: High Court Recalls Principles from Inder Mohan Goswami and Raghuvansh Dewanchand Cases

Justice Choudhury strongly invoked settled constitutional and procedural law:

“Issuance of non-bailable warrants involves interference with personal liberty… Arrest and imprisonment mean deprivation of the most precious right of an individual. Therefore, courts have to be extremely careful.”

Quoting the Supreme Court in Inder Mohan Goswami v. State of Uttaranchal (2007) and Raghuvansh Dewanchand Bhasin v. State of Maharashtra (2012), the Court stressed that:

“Warrants should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences… Every effort should be made to avoid wrongful detention.”

The Court noted that there was no evidence the summons had ever been served, nor was there any police report indicating that Barua had deliberately evaded arrest. In absence of such material, issuing NBWAs was “not as per the mandate of law.”

“If Initial Action Is Illegal, All Consequential Orders Must Fall”: Court Sets Aside Entire Chain of Orders from February 2023

Referring to the legal doctrine that foundational illegality taints all that follows, the Court ruled:

“If an order at the initial stage, like the Order dated 23.02.2023, is bad in law, then all further and other orders consequent thereto must also be necessarily set aside.”

Accordingly, the Court quashed all NBWAs and P&A orders issued by the Trial Court, declaring them unsustainable in law.

“Petitioner Undertakes to Appear Before Trial Court”: High Court Grants Time to Surrender

Taking note of the petitioner’s undertaking to appear before the Trial Court and his apprehension of arrest, the High Court offered him protective relief:

“If the petitioner appears and submits to the jurisdiction of the Trial Court on or before 31.08.2025, and files a bail application, the Trial Court shall consider it on its own merits and in accordance with law.”

Date of Decision: 12 August 2025