Gauhati High Court
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GAHC010025402026
2026:GAU-AS:2137
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./414/2026
JAHIR ISLAM
SON OF MOIDUL ISLAM
RESIDENT OF VILL- UDIANA, BALAGAON, PO.S. RANGIA,
DIST. KAMRUP,ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : S KAUR, N NEOG,L BANIK
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 13-02-2026
Heard Ms. L. Banik, learned Counsel appearing for the accused-applicant.
Also heard Mr. K.K Parasar, learned Addl. Public Prosecutor appearing for the
State respondent.
2. This is an application under Section 483 BNSS, 2023, has been filed by the
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Accused Applicant, namely, Jahir Islam, praying for grant of bail in connection
with Rangia P.S. Case No. 278/2025, under Sections 17(C)/29 of the NDPS Act,
1985.
3. The prosecution case is inter alia that one W.S.I. Jitumani Rabha of Rangia
Police Station has lodged an FIR before Rangia P.S. alleging that they receipt a
credible information that a huge consignment of narcotics (Opium) had been
received from Manipur by some narcotics dealers, namely, Aitul Ali and his
brother, Mamtul Ali @ Mantul Ali and the aforesaid narcotics had been stocked
in their house; that based on the input, a raid was carried out in the house of
Aitul Ali and his brother Mamtul Ali, @ Mantul Ali at village Udiana, Balagaon,
P.S.-Rangia and recovered 86 kgs (without cover) of Opium valued at Rs. 5
Crores and 16 lakhs in open market which had been packed in 45 nos. of
packets; that getting suspicious of presence of some police, Aitul Ali and his
brother Mamtul Ali @ Mantul Ali fled away from the house; that Jarina Begum,
wife of the Mamtul Ali @ Mantul Ali, who is also a partner in the narcotics trade,
was stopped from fleeing away; that along with Jarina Begum, some other
persons, including the Accused Applicant were also present in the house, who
were in the process of opening the Opium packets and weighing them, and
thereafter, to deliver the same to other places, were also apprehended; that Rs.
25,25,400/- in cash along with the aforesaid Opium were also recovered from
the house; that the aforesaid Aitul Ali and Mamtul Ali, along with their wives and
other family members, had been engaged in narcotics trade for a long time;
that from the narcotics trade, they have accumulated huge assets in terms of
lands, houses, luxury cars and invested in various business ventures; that the
accused persons do not have any other known source of legitimate income; and
that Aitul Ali and Mamtul Ali have a number of NDPS Act cases pending against
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them.
4. On receipt of the FIR, the police registered Rangia P.S. Case No. 278/2025,
under the aforementioned sections.
5. The present Accused Applicant after his arrest was produced before the
Sub-Divisional Judicial Magistrate, Rangia, on 14.12.2025 and since then, the
Accused Applicant is in Judicial Custody.
6. Ms. Banik, learned Counsel appearing for the Accused Applicant submits
that the Accused Applicant is a pan shop owner and he was arrested when he
came to the house of the main accused persons for delivering some Gutka
products. She submits that the Police arrested him for no reasons and he is no
way linked to any narcotics drugs trade. She submits that the Accused Applicant
has been arrested without following the mandatory provisions of the BNSS,
2023 as while arresting the Accused Applicant, no notice under Section 47 BNSS
was given to him providing the Grounds of his arrest. She submits that the
Notice under Section 47 does not contain the signature of the Accused
Applicant, meaning thereby, no service of the Notice to the Accused Applicant.
She further submits that Notice under Section 48 BNSS was given to one Wasif
Saikia, the Gaon Burha of the village instead of giving to any of the family
members or friends of the Accused Applicant or any person nominated by the
Accused Applicant. She submits that the aforesaid Gaon Burha is neither known
to him nor was he nominated by him. Therefore, the Notice cannot be termed
as Notice under Section 48 of BNNS. In view of the aforesaid non-compliance of
the mandatory provisions of BNSS, she submits that the arrest has become
illegal and the Accused Applicant should be granted bail on that ground alone.
7. In support of her submissions, Ms. Banik, learned counsel for the accused
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applicant, has relied upon the ratio laid down in the case of Mihir Rajesh Shah
v. State of Maharashtra and Ors, reported in 2025 SCC Online SC 2356,
wherein the Hon’ble Supreme Court held that a written copy of the grounds of
arrest must be supplied to the arrested person within a reasonable time, and
not later than two hours prior to the production of the arrestee before the
learned Magistrate.
8. Mr. Parasar, learned Additional Public Prosecutor submits that there is no
violation of Section 47 and 48 of BNSS, 2023 in the instant case while arresting
the accused applicant. He submits that the accused applicant is a worker who
has been working with the masterminds and the main accused persons, Aitul Ali
and Mamtul Ali. He submits that the Accused Applicant has confessed in his
statements before the Police about his involvement in the Drugs business along
with the aforesaid main accused persons. He further submits that there is no
violation of Section 47 of BNSS as a proper Arrest Memo was prepared by the
Police and the same was given to him by the Police which contains the Grounds
of his Arrest. Therefore, he submits that there is no pre-judice caused to him
even though his signature was not obtained in the notice under Section 47 of
BNSS, 2023. He submits that the notice under Section 48 of BNSS, 2023 was
served upon the Gaonburha of the village, as the Accused Applicant nominated
the Gaonburha and he was given the notice under Section 48 of BNSS, 2023. He
submits that Section 48 of BNSS, 2023 specifically provides that a notice under
Section 48 of BNSS, 2023 can be given to the nominated person of the arrestee.
Hence, he vehemently opposes the prayer of bail of the Accused Applicant.
9. This Court has gone through the Case Diary that has been produced before
this Court as well as heard the submissions made by the learned counsel
representing the respective parties.
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10. On perusal of the Notice under Section 47 of BNSS, 2023, it is seen though
the Grounds of Arrest and other details are available, no signature of the
arrested person, i.e., the signature of the Accused Applicant is not available in
the Notice. This fact prima facie indicates that no Notice under Section 47 of
BNSS, 2023 was served or issued to the Accused Applicant while arresting him.
There is no material found in record to show that the Notice was given to him
on a later stage too. The Hon’ble Apex Court in a catena of cases, including the
case of Mihir Rajesh Shah (supra) has held that the non-service of Notice
under Section 47 BNSS, 2023 to the arrestee is violative of the mandates of
provisions of Section 47 BNSS which makes the arrest illegal and thereby,
providing an indefeasable right to bail to the arrested person.
11. Though Section 37 of the NDPS Act provides for certain conditions to be
fulfilled before granting bail to an arrested person in case of seizure of
commercial quantity, the same will be applicable only when the arrest is itself
not illegal. However, if any arrest is made in violation of the mandatory
provisions as laid down in the BNSS, 2023, then the same goes to the root of
the matter and the initial arrest itself becomes illegal.
12. The fundamental rights are paramount under the Constitution of India.
Article 21 provides that no person shall be deprived of his life or personal liberty
except according to procedure established by law. Personal liberty, thus, is a
sacred and cherished right under the Constitution of India. Article 22 of the
Constitution of India further strengthens the protection of personal liberty of a
person by providing that the person arrested must be informed of the grounds
of his arrest at the earliest and should not be detained without informing him of
such grounds.
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13. In view of the aforesaid, this Court is of the considered opinion that the
rigours of Section 37 of the NDPS Act shall not be applicable in a case wherein
the initial arrest itself is rendered illegal due to violation of Section 47 of the
BNSS, 2023. Therefore, this Court is of the considered opinion that there is a
violation of Section 47 of the BNSS, 2023 in the instant case while arresting the
accused applicant whereby curtailing the fundamental rights of the Accused
Applicant guaranteed under Article 21 and 22 of the Constitution of India
without following the due legal process.
14. Having found prima facie violation in the arrest of the Accused Applicant in
service of Notice under Section 47 of BNSS, 2023, this Court does not feel any
requirement to examine the merits of the argument of the learned counsel for
the Accused Applicant about Section 48 Notice of BNSS, 2023.
15. In view of the aforesaid discussions and findings, this Court directs that the
accused applicant to be released forthwith on bail on furnishing of a bail bond of
Rs. 50,000/ (Fifty Thousand only) with two sureties of like nature to the
satisfaction of the learned Sub-Divisional Judicial Magistrate, Rangia, subject to
the following conditions:-
(i) that the accused applicant shall appear before the Investigation Officer as
and when required;
(ii)that the accused applicant 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 Investigating Officer;
(iii) that the accused applicant shall provide his contact details including
photocopies of their Aadhar Card or PAN card as well as, mobile numbers, and
other contact details before the Sub-Divisional Judicial Magistrate, Rangia;
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(iv) that the accused applicant shall not leave the jurisdiction of the Sub-
Divisional Judicial Magistrate, Rangia, without prior permission of the said Court
and when such leave is granted by the said Court, the accused applicant shall
submit his addresses and contact details during such leave before the said
Court; and
(v) that the accused applicant shall not commit any offence while on bail.
16. In view of the aforesaid directions, this bail application stands disposed of,
as allowed.
17. The Case Diary so received to be sent back.
JUDGE
Comparing Assistant
