Gauhati High Court
Mahammad Chand vs The State Of Assam on 27 March, 2026
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GAHC010023372026
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./391/2026
MAHAMMAD CHAND
S/O NURUL HODA
R/O VILL- N.K. DARRANGA P.S. TAMULPUR, DIST. TAMULPUR, ASSAM,
PIN-781360.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A K AZAD, MS S DEVI
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 27.03.2026
1. Heard Mr. A. K. Azad, learned counsel for the petitioners. Also heard Mr.
K. K. Parasar, learned Additional Public Prosecutor for the State.
2. By this common order, this court proposes to dispose of two bail
applications, namely, Bail Application No. 387/2026 filed by the petitioners,
namely, 1. Mojibur Ali and 2. Kabil Ali as well as Bail Application No. 391/2026
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filed by the petitioner, namely, Mahammad Chand. The petitioners, namely, 1.
Mojibur Ali and2. Kabil Ali, in Bail Application No. 387/2026, were arrested on
04.04.2025, whereas, the petitioner, namely, Mahammad Chand, in Bail
Application No. 391/2026, was arrested on 28.05.2025.
3. This is for the second time, the above-named petitioners have
approached this Court. Their earlier bail applications were rejected by this Court
after perusing the materials against them.
4. The gist of accusation in this case is that on 04.04.2025, one
Mahendra Saikia, SI of Police had lodged an FIR before the Officer-in-charge of
Tamulpur Police Station, inter alia, alleging that on that day an information was
received through reliable sources that two persons, namely, Mojibur Ali and
Kabil Ali, (petitioner Nos. 1 and 2) were possessing large number of suspected
prohibited drugs in their house which was given to them by one Phurba Sherpa.
Accordingly, a search team was constituted and a search was made in the house
and premises of the petitioner Nos. 1 and 2 in presence of independent
witnesses. Though, nothing was found from the inside the house of the
petitioners, however, during search operation a gunny bag was found concealed
near the boundary wall under the tin sheets. On removing the tin sheets and
searching the gunny bag, it was found that there was a blue colored school bag
wherein a black colored polythene was there containing 16 small plastic carry
bags containing 1388.67 grams of suspected narcotic drugs. The petitioner Nos.
1 and 2 in Bail Application No. 387/2026 were arrested from the place of search
and during investigation, involvement of petitioner in Bail Application No.
391/2026 was also found. It is also found during forensic examination that the
recovered suspected narcotic drugs contained Tramadol which is a prohibited
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narcotic substance under NDPS Act, 1985.
5. This time the aforesaid above-named petitioners have approached this
court with an additional ground by way of filing an additional affidavit that the
notice under Section 47 of the BNSS served on them at the time of their arrest
was not in accordance with the statutory mandate of Section 47 as it does not
disclose grounds of arrest.
6. The learned counsel for the petitioners submits that the notices which
were served on the petitioners under Section 47 of the BNSS mentions following
in the column grounds of arrest: – ” total 2102 numbers of light blue capsules
and 133 numbers of navy-blue capsules were recovered and seized from his
house premises.” He submits that the aforesaid ground does not disclose any
implicating material against the petitioners. He submits that the grounds stated
in the notice under Section 47 of the BNSS, which was served on the above-
named petitioners were not in pursuant to the observations made by the Apex
Court in the case of “Prabir Purkayastha Vs. State (NCT Of Delhi)” reported in
“(2024) 8 SCC 254” as well as in the case of Vihaan Kumar Vs. State of Haryana
and another, reported in “2025 SCC OnLine SC 269” .The learned counsel for the
petitioner has also cited following orders passed by this court in following bail
applications in support of his submissions:-
(1) “Ajir Ali @ Budu Vs. The State of Assam ” (Bail Application No.
255/2025, order dated 27.02.2025)
(2) “Klington Ronghang Vs. The State of Assam ” (Bail Application No.
1519/2025, order dated 30.07.2025)
7. He submits that as the grounds of arrest were not communicated in
pursuant to the observations of the Apex Court in the aforesaid cases, there is a
violation of 22(1) of the Constitution of India as well as Article 21 of the
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Constitution of India, therefore, they are entitled to get bail in this case.
8. On the other hand, Mr. K. K. Parasar, the Additional Public Prosecutor
has submitted that this is not a case where no ground of arrest has been stated
in the notice under Section 47 of the BNSS. He submits that the notice which
was served on the petitioners under Section 47 clearly states the fact of
recovery of capsules from the house premises of the accused persons, which
was later found to be prohibited drugs in the forensic laboratory report. He,
therefore, submits that the mandate of Section 47 has been complied with in
this case.
9. The learned Additional Public Prosecutor further submits that the
seizure list which was prepared at the time of recovery of the aforesaid
contraband clearly state about recovery of suspected drugs from possession of
petitioners in Bail Application No. 387/2026. He further submits that the forensic
laboratory report of the recovered contraband found presence of prohibited drug
i.e., tramadol, in the recovered capsules. He further submits that on earlier
occasion when the petitioners approached this court, this court had rejected
their bail application after considering all the aspects and at that time, the plea
of any violation of Section 47 of the BNSS was not taken by the petitioners. He,
therefore, submits that the bail applications are liable to be dismissed.
10. I have considered the submissions made by the learned counsel for
both sides. I have also perused the materials available on record as well as gone
through the rulings cited by learned counsel for the petitioners in support of his
respective submission.
11. The bail application filed by the petitioners on earlier occasions was
rejected on merit. However, at that time, the plea of violation of fundamental
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rights of the petitioners under Article 22(1) of the Constitution of India as well
as Section 47 of the BNSS was not taken by the petitioners.
12. This time, by citing the judgment of the Apex Court in the case of
“Vihaan Kumar Vs. State of Haryana and another”(supra), the petitioners have
taken the ground of violation of mandatory constitutional provisions contained in
Article 22(1) as well as Article 21 of the Constitution of India.
13. On perusal of the copies of notice under Section 47 of the BNSS which
were served on the petitioners at the time of their arrest. It appears that it has
been stated therein as follows:-
“You are hereby informed of your arrest in connection with below referred
case/circumstance. The case is non-bailable to police. But you are
informed that you may seek bail in the jurisdictional court as per law.
14. Thereafter, the name of the police station i.e., Tamulpur as well as case
number, i.e., Tamulpur P.S. Case No. 92/2025and the sections of law involved
i.e., under Section 22(c) of NDPS Act were mentioned therein. Against the
column ground of arrest, it was stated therein that ” Total 2102 numbers of light
blue capsules and 133 numbers of navy-blue capsules were recovered and
seized from his house premises”.
15. Bare perusal of the aforesaid notice would reveal that though the fact of
recovery of 133 numbers of capsules were stated in the column grounds of
arrest, however, no indication was given therein that said capsules were
prohibited drugs or were suspected to be containing prohibited drugs. The
mandate of law is that under Section 47 of the BNSS, at the time of arresting a
person without warrant, the arresting authority has to communicate to him full
particulars of the offence for which he was arrested.
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16. For sake of clarity, following relevant provisions are quoted herein
below:-
Article 22 (1) of the Constitution of India provides as follows:-
“(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.”
Section 47 of the BNSS, 2023 provides as follows:-
“47. (1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full particulars
of the offence for which he is arrested or other grounds for such
arrest.
(2) Where a police officer arrests without warrant any person other
than a person accused of a nonbailable offence, he shall inform the
person arrested that he is entitled to be released on bail and that he
may arrange for sureties on his behalf.”
Similarly, Section 52 (1) of the NDPS Act, 1985 provides as follows:-
“52 (1) Any officer arresting a person under section 41, section 42 section
43 or section 44 shall, as soon as may be, inform him of the grounds for
such arrest.”
Section 51 of the NDPS Act, 1985 provides as follows:-
51. Provisions of the Code of Criminal Procedure, 1973 to apply to
warrants, arrests, searches and seizures.– The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not
inconsistent with the provisions of this Act, to all warrants issued and
arrests, searches and seizures made under this Act.
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17. A bare perusal of above constitutional as well as statutory provision
would reveal that informing an arrestee about the grounds of his arrest is not
only his statutory rights under various statutes, but also a constitutional right.
18. The Apex Court of India has observed in the case of ” Vihan Kumar Vs.
State of Haryana and another” (supra) as follows:
“14. Thus, the requirement of informing the person arrested of the grounds of arrest is
not a formality but a mandatory constitutional requirement. Article 22 is included in
Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the
fundamental right of every person arrested and detained in custody to be informed of
the grounds of arrest as soon as possible. If the grounds of arrest are not informed as
soon as may be after the arrest, it would amount to a violation of the fundamental
right of the arrestee guaranteed under Article 22(1). It will also amount to depriving
the arrestee of his liberty. The reason is that, as provided in Article 21, no person can
be deprived of his liberty except in accordance with the procedure established by law.
The procedure established by law also includes what is provided in Article 22(1).
Therefore, when a person is arrested without a warrant, and the grounds of arrest are
not informed to him, as soon as may be, after the arrest, it will amount to a violation
of his fundamental right guaranteed under Article 21 as well. In a given case, if the
mandate of Article 22 is not followed while arresting a person or after arresting a
person, it will also violate fundamental right to liberty guaranteed under Article 21, and
the arrest will be rendered illegal. On the failure to comply with the requirement of
informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated.
Once the arrest is held to be vitiated, the person arrested cannot remain in custody
even for a second.”
19. The Apex Court has also observed in the case of “Prabir Purkayastha Vs.
State (NCT Of Delhi) (supra) as follows:-
“21. The right to be informed about the grounds of arrest flows from Article 22(1) of
the Constitution of India and any infringement of this fundamental right would vitiate
the process of arrest and remand. Mere fact that a charge-sheet has been filed in the
matter, would not validate the illegality and the unconstitutionality committed at the
time of arresting the accused and the grant of initial police custody remand to the
accused.
48. It may be reiterated at the cost of repetition that there is a significant difference in
the phrase “reasons for arrest” and “grounds of arrest”. The “reasons for arrest” as
indicated in the arrest memo are purely formal parameters viz. to prevent the accused
person from committing any further offence; for proper investigation of the offence; to
prevent the accused person from causing the evidence of the offence to disappear or
Page No.# 8/11tampering with such evidence in any manner; to prevent the arrested person for
making inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the court or to the
investigating officer. These reasons would commonly apply to any person arrested on
charge of a crime whereas the “grounds of arrest” would be required to contain all
such details in hand of the investigating officer which necessitated the arrest of the
accused. Simultaneously, the grounds of arrest informed in writing must convey to the
arrested accused all basic facts on which he was being arrested so as to provide him
an opportunity of defending himself against custodial remand and to seek bail. Thus,
the “grounds of arrest” would invariably be personal to the accused and cannot be
equated with the “reasons of arrest” which are general in nature.”
20. In the case of “Vihan Kumar Vs. State of Haryana and another ” (supra),
the Apex Court has also observed as follows:-
“21. Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory
requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to the arrested person in
such a manner that sufficient knowledge of the basic facts constituting the grounds is
imparted and communicated to the arrested person effectively in the language which
he understands. The mode and method of communication must be such that the
object of the constitutional safeguard is achieved;
c) When arrested accused alleges non-compliance with the requirements of Article
22(1), the burden will always be on the Investigating Officer/Agency to prove
compliance with the requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of
the accused guaranteed by the said Article. Moreover, it will amount to a violation of
the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore,
non-compliance with the requirements of Article 22(1) vitiates the arrest of the
accused. Hence, further orders passed by a criminal court of remand are also vitiated.
Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at
the same time, filing of charge-sheet will not validate a breach of constitutional
mandate under Article 22(1);
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e) When an arrested person is produced before a Judicial Magistrate for remand, it is
the duty of the Magistrate to ascertain whether compliance with Article 22(1) and
other mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the duty of the court to
forthwith order the release of the accused. That will be a ground to grant bail even if
statutory restrictions on the grant of bail exist. The statutory restrictions do not affect
the power of the court to grant bail when the violation of Articles 21 and 22 of the
Constitution is established.”
21. In the instant case, bare perusal of the grounds stated in notices issued
to the petitioners of Bail Application No. 387/2026, namely, 1. Mojibur Ali and 2.
Kabil Ali, do not disclose the particulars of offence in detail and the grounds
stated therein itself do not constitute any offence. Hence, there is a violation of
mandate of Section 47 of BNSS, 2023 consequently, the violation of the
fundamental rights guaranteed to them under 22(1) as well as Article 21 of the
Constitution of India.
22. Due to such violation, in view of the observations made by the Apex
Court in the rulings discussed hereinabove, the arrest itself gets vitiated and the
embargo of Section 37 of the NDPS Act, 1985 is not applicable to such cases. As
such, both the above-named petitioners are entitled to get bail.
23. However, as regards the notice,under Section 47 of BNSS, served on
petitioner of Bail Application No. 391/2026, namely, Mahammad Chand is
concerned, same is not the case as it clearly states therein that Mahammad
Chand was arrested for supplying 2102 numbers of psychotropic tablets of
commercial quantity to the co-accused persons. Hence, it cannot be said that
the notice served on the said petitioner also suffers from vice of non-compliance
of the mandatory provisions under Section 47 of the BNSS. Hence, the said
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petitioner is not entitled to get bail.
24. Accordingly,in view of discussion made in the foregoing paragraphs, the
Bail Application No. 391/2026 filed by Mahammad Chand is hereby dismissed.
25. However, the bail application filed by the petitioners, namely, 1. Mojibur
Ali and 2. Kabil Ali i.e., Bail Application No. 387/2026 is allowed due to violation
of the mandatory provisions contained in Section 47 of BNSS as well as Article
22(1) of the Constitution of India.
26. Accordingly, the petitioners, namely, 1. Mojibur Ali and 2. Kabil Ali are
allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh) each with two
sureties of like amount subject to the satisfaction of the learned Special Judge,
Baksa, Mushalpur, with following conditions:-
i. That the petitioners shall co-operate in the trial of Special NDPS Case
No. 11/2025, which is pending in the Court of the learned Special Judge,
Baksa;
ii. That the petitioners shall appear before the Trial Court as and when so
required by the Trial Court;
iii. That the petitioners shall not directly or indirectly make any
inducement, threat, or promise to any person who may be acquainted
with the facts of the case, so as to dissuade such person from disclosing
such facts before the Trial Court in the trial pending against the present
petitioners;
iv. That the petitioners shall provide their contact details including
photocopies of their Aadhar Card or Driving License or PAN card as well
as, mobile number, and other contact details before the Trial Court;
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v. That the petitioners shall not leave the jurisdiction of the Trial Court
without prior permission of the Trial Court and when such leave is granted
by the Trial Court, the petitioners shall submit their leave address and
contact details during such leave before the Trial Court; andvi. That the petitioners shall not commit any offence while on bail.
27. The bail application is, accordingly disposed of.
JUDGE
Comparing Assistant