Gauhati High Court
Taher Ali vs The State Of Assam on 3 August, 2026
Page No.# 1/15
GAHC010160902026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2168/2026
TAHER ALI
S/O- LT. LALCHAN ALI, R/O. VILL.- ROUMARI GAON, 2 P.S. TARABARI,
DIST.- BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV, R KHA,MR S ISLAM,MS M
NIROLA,MS. P AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 03.08.2026.
Heard Mr. P. J. Saikia, learned Sr. Counsel, assisted by Mr. P.
Bordoloi, learned counsel for the accused. Also heard Mr. P.
Borthakur, learned Addl. P.P. for the state respondent.
2. This application, under Section 483 of the BNSS 2023, is
preferred by accused, namely, Taher Ali, who has been languishing
in jail hazoot since 19.07.2026, in connection with Tarabari P.S. Case
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No. 47/2026, under Sections 318(4)/336(3)/61(2) of the Bharatiya
Nyaya Sanhita (BNSS), 2023 read with Sections 66C and 66D of the
Information Technology Act, 2000.
3. It is to be noted here that above noted case has been registered
on the basis of and FIR lodged by S.I. Biswajit Das 18.07.2026.
4. The essence of allegation in the FIR is that on 18/07/2026, in
connection with Tarabari PS GDE No-22, Dtd. 18/07/2026, the
informant with staff conducted search in the house of Taher Ali, S/O
Late Lalchan Ali, R/O Vill.-Roumari Gaon, suspecting him being
involved in cyber crime and financial fraud activities, operating from
his residence and recovered from his possession:-1. 08 (Eight)
Mobile Phones; 2. 08 (Eight) ATM Cards; 3. 02 (Two) Union Bank
Passbooks; 4. 01 (One) PAN Card in the name of Taher Ali; and 5.
Cash amounting to Rs. 82,000/- (Rupees Eighty-Two Thousand only)
and seized the same in the presence of witnesses. And during
interrogation, the suspected person failed to provide any satisfactory
explanation regarding the lawful source and use of the recovered
mobile phones, ATM cards and the seized cash. And upon
preliminary examination, it was found that the recovered mobile
phones contained materials indicating involvement in cyber-related
financial fraud activities along with others. It was further learnt that
the accused person had been using multiple mobile phones and ATM
cards to receive, operate and transfer money obtained through cyber
fraud, thereby deriving wrongful gain.
4.1. Thereafter, the I.O. had apprehended and arrested the four
persons namely Taher Ali, Amirul Ali, Mainuddin Ali and Paran Ali,
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and produced them before the learned Chief Judicial Magistrate,
Barpeta seeking police custody for the purpose of further
investigation. During investigation it has been found that Taher All,
Poran Ali and their associates were engaged in illegal on line gaming
operations connected with Chinese platforms. They procured and
used bank accounts of different persons for operating such activities
and received their illegal profits in the form of USDT, which were
converted into INR with the active assistance of the present accused
-Ariful Kabir, who knowingly assisted them in converting USDT
(crypto currency) obtained through illegal cyber fraud activities into
Indian Rupees (INR).
5. Mr. Saikia, learned counsel for the accused persons, submits that
the accused persons were taken into custody on 19.07.2026 and
forwarded to court on 20.07.2026 and since then they are
languishing in jail hazoot. Mr. Bhuyan also submits that the accused
were neither named as an accused in FIR nor was any allegation
whatsoever leveled against them at the inception of the
investigation.
5.1. Mr. Saikia also submits that the mandatory requirements of
Section 35(3) of BNSS, has not been followed by the I.O., since the
offences alleged against the petitioner are punishable with
imprisonment which does not exceed seven years and, therefore,
the I.O was required to record cogent and specific reasons
necessitating the petitioners’ arrest and also the reasons as to why
the issuance of a notice under the statutory mandate would not
have sufficed in the facts and circumstances of the case.
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5.2. Mr. Saikia also pointed it out that the reasons assigned in the
Arrest Memo, the Grounds of Arrest and the Forwarding Report
would reveal that the same are merely general and mechanical in
nature, which does not disclose any objective satisfaction warranting
the petitioner’s accordance with the mandate of Section 35(3) of the
BNSS. The statutory safeguards engrafted by the Legislature are
intended to ensure that arrest is resorted to only when the
circumstances of the case genuinely so require not in a routine
manner and for this non-compliance, the accused are entitled to be
released on bail.
5.3. Mr. Saikia further submits that though the learned Judicial
Magistrate First Class, Barpeta, has recorded his satisfaction in the
order authorizing detention, yet the same is not sufficient and it
would not make an illegal arrest as legal.
5.4. In support of his submission, Mr. Saikia has referred to the
decision of Hon’ble Supreme Court in-
(i) Satender Kumar Antil vs. CBI, reported in
(2022) 10 SCC 51,
6. Per contra, Mr. Borthakur, learned Addl. P.P. has produced the
case diary, though the same was not called for, and on the strength
of the same he submits that the I.O. has collected sufficient
incriminating materials against the accused persons warranting their
further detention in jail hazoot. He also submits that the I.O. in the
forwarding report has clearly stated the reason as to why the
provision of Section 35(3) BNSS could not be complied with. He also
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submits that in the forwarding report the I.O. has mentioned the
facts, the reasons and the learned Magistrate also in the order of
remand had clearly recorded its satisfaction upon the explanation
given by the I.O. in the forwarding report. And as such, the
contention so raised by the accused are devoid of merit and
therefore, he has contended to dismiss this petition.
7. Having heard the submissions of learned Advocates of both
sides, I have carefully gone through the petition and the documents
placed on record and also gone through the relevant provision of law
and also gone through the decisions referred by Mr. Bhuyan, learned
counsel for the accused.
8. It appears that the accused namely, Taher Ali, was arrested
19.07.2026, in connection with Tarabari P.S. Case No. 47/2026,
under Sections 318(4)/336(3)/61(2) of the BNSS, 2023 read with
Sections 66C and 66D of the Information Technology Act, 2000, and
remanded to jail hazoot on the same day and since then he has
been languishing in jail hazoot.
9. It is to be noted here that in the case of Satender Kumar
Antil (supra), in paragraph No.28, Hon’ble Supreme Court has
re-iterated compliance of directions issued by it in the case of
Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCC
273. Relevant paragraph is extracted herein below:-
28. We only reiterate that the directions
aforesaid ought to be complied with in letter
and spirit by the investigating and prosecuting
agencies, while the view expressed by us on the
Page No.# 6/15non-compliance of Section 41 and the
consequences that flow from it has to be kept in
mind by the court, which is expected to be
reflected in the orders.
9.1. Notably, in the case of Arnesh Kumar (supra) Hon’ble
Supreme Court, regarding the requirement of recording satisfaction
by Investigating Officer before effecting arrest in case where
punishment is seven years, is emphasized in para No.7.1 of the said
decision and the same is extracted herein below:-
“7.1. From a plain reading of the aforesaid
provision, it is evident that a person accused
of an offence punishable with imprisonment for a
term which may be less than seven years or which
may extend to seven years with or without fine,
cannot be arrested by the police officer only on
his satisfaction that such person had committed
the offence punishable as aforesaid. A police
officer before arrest, in such cases has to be
further satisfied that such arrest is necessary
to prevent such person from committing any
further offence; or for proper investigation of
the case; or to prevent the accused from causing
the evidence of the offence to disappear; or
tampering with such evidence in any manner; or
to prevent such person from making any
inducement, threat or promise to a witness so as
to dissuade him from disclosing such facts to
the court or the police officer; or unless such
accused person is arrested, his presence in the
court whenever required cannot be ensured. These
are the conclusions, which one may reach based
on facts.
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7.2. The law mandates the police officer to
state the facts and record the reasons in
writing which led him to come to a conclusion
covered by any of the provisions aforesaid,
while making such arrest. The law further
requires the police officers to record the
reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before
arrest must put a question to himself, why
arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is
only after these questions are addressed and one
or the other conditions as enumerated above is
satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the
police officers should have reason to believe on
the basis of information and material that the
accused has committed the offence. Apart from
this, the police officer has to be satisfied
further that the arrest is necessary for one or
the more purposes envisaged by sub-clauses (a)
to (e) of clause (1) of Section 41CrPC.
9.2. Further, regarding the requirement of recording satisfaction by
Magistrate before authorizing detention under Section 167 Cr.P.C., in
case where punishment is seven years, is emphasized in para No.8
of the said decision and the same is extracted herein below:-
8. An accused arrested without warrant by the
police has the constitutional right under
Article 22(2) of the Constitution of India and
Section 57CrPC to be produced before the
Page No.# 8/15Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time
necessary for the journey:
8.1. During the course of investigation of a case,
an accused can be kept in detention beyond a
period of 24 hours only when it is authorised by
the Magistrate in exercise of power under
Section 167CrPC. The power to authorise
detention is a very solemn function. It affects
the liberty and freedom of citizens and needs to
be exercised with great care and caution. Our
experience tells us that it is not exercised
with the seriousness it deserves. In many of the
cases, detention is authorised in a routine,
casual and cavalier manner.
8.2. Before a Magistrate authorises detention under
Section 167 CrPC, he has to be first satisfied
that the arrest made is legal and in accordance
with law and all the constitutional rights of
the person arrested are satisfied. If the arrest
effected by the police officer does not satisfy
the requirements of Section 41 of the Code,
Magistrate is duty-bound not to authorise his
further detention and release the accused. In
other words, when an accused is produced before
the Magistrate, the police officer effecting the
arrest is required to furnish to the Magistrate,
the facts, reasons and its conclusions for
arrest and the Magistrate in turn is to be
satisfied that the condition precedent for
arrest under Section 41CrPC has been satisfied
and it is only thereafter that he will authorise
the detention of an accused.
8.3. The Magistrate before authorising detention
Page No.# 9/15will record his own satisfaction, may be in
brief but the said satisfaction must reflect
from his order. It shall never be based upon the
ipse dixit of the police officer, for example,
in case the police officer considers the arrest
necessary to prevent such person from committing
any further offence or for proper investigation
of the case or for preventing an accused from
tampering with evidence or making inducement,
etc. the police officer shall furnish to the
Magistrate the facts, the reasons and materials
on the basis of which the police officer had
reached its conclusion. Those shall be perused
by the Magistrate while authorising the
detention and only after recording his
satisfaction in writing that the Magistrate will
authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and
produced before a Magistrate for authorising
detention, the Magistrate has to address the
question whether specific reasons have been
recorded for arrest and if so, prima facie those
reasons are relevant, and secondly, a reasonable
conclusion could at all be reached by the police
officer that one or the other conditions stated
above are attracted. To this limited extent the
Magistrate will make judicial scrutiny.
9. … The aforesaid provision makes it clear that in
all cases where the arrest of a person is not
required under Section 41(1)CrPC, the police
officer is required to issue notice directing
the accused to appear before him at a specified
place and time. Law obliges such an accused to
appear before the police officer and it further
Page No.# 10/15mandates that if such an accused complies with
the terms of notice he shall not be arrested,
unless for reasons to be recorded, the police
officer is of the opinion that the arrest is
necessary. At this stage also, the condition
precedent for arrest as envisaged under Section
41CrPC has to be complied and shall be subject
to the same scrutiny by the Magistrate as
aforesaid.
9.3. It is also to be noted here that the proposition laid down in the
case of Satender Kumar Antil (supra) (I) was subsequently
affirmed in the second case of Satender Kumar Antil (supra)
(II) and following directions were issued:-
33. On the basis of the interpretation given by
us, we conclude as follows:-
a. An arrest by a police officer is a mere
statutory discretion which facilitates him
to conduct proper investigation, in the form
of collection of evidence and, therefore,
shall not be termed as mandatory.
b. Consequently, the police officer shall ask
himself the question as to whether an arrest
is a necessity or not, before undertaking
the said exercise.
c. For effecting an arrest, qua an offence
punishable with imprisonment up to 7 years,
the mandate of Section 35 (1) (b) (i) of
the BNSS, 2023 along with any one of the
conditions mentioned in Section 35(1)(b)
(ii) of the BNSS, 2023 must be in existence.
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d. A notice under Section 35(3) of the BNSS,
2023 to an accused or any individual
concerned, qua offences punishable with
imprisonment up to 7 years, is the rule.
e. Even if the circumstances warranting an
arrest of a person are available in terms of
the conditions mentioned under Section 35(1)
(b) of the BNSS, 2023, the arrest shall not
be undertaken, unless it absolutely
warranted.
f. Power of arrest under Section 35(6) read with
Section 35(1)(b) of the BNSS, 2023, pursuant
to a notice issued under Section 35(3) of
the BNSS, 2023 is not a matter of routine,
but an exception, and the police officer is
expected to be circumspect and slow in
exercising the said power.
10. In the instant case the I.O., while not releasing the accused
after issuing Notice under Section 35(3) BNSS, 2023 has recorded a
‘Note’ in the Forwarding Report dated 19.07.2026, which is
extracted herein below:-
Note: If the arrested accused person is
released as per Notice U/S-35(3) BNSS, he may
hamper and tamper with the evidences of the
case, threatening the local witnesses and also
may abscond and their production in the
Hon’ble court during trial cannot be ensured.
Therefore, the accused person was not released
on Notice U/S 35(3) BNSS.
11. It also appears that the I.O., in the Forwarding Report has
recorded the Facts of the Case, Grounds of Arrest and also Reasons
of Arrest.
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12. It also appears that the learned Magistrate while allowing
custody of the accused it had considered the case diary and
recorded a finding as under:-
“I have carefully considered the rival
submissions and perused the entire case diary
and the records produced by the Investigating
Officer.
The FIR reveals that acting upon reliable
source information regarding organised cyber-
enabled financial fraud activities, the police
con-ducted a lawful search at the residence of
accused Taher Ali, during which eight mobile
phones, eight ATM cards, two Union Bank
passbooks, one PAN card and cash amounting to
Rs.82,000/- were re-covered and seized. During
the subsequent course of investigation, the
other accused persons were apprehended and
several additional electronic de-vices,
ATM/debit cards, bank documents, identity cards,
SIM cards and two motor vehicles, namely an Audi
A-3 and a Hyundai Venue, were also seized under
different seizure lists. Prima facie, the
materials collected thus far indicate the
involvement of the accused persons in an
organised cyber-enabled financial fraud racket
involving multiple bank ac-counts, electronic
devices and financial transactions.
The forwarding report and the case diary
further disclose that the Investigating Officer
has recorded detailed reasons for arrests as
required under the BNSS. The reasons
specifically indicate that custodial
Page No.# 13/15interrogation was considered necessary to
ascertain the modus operandi of the organised
cyber fraud, identify and apprehend other
members of the network, recover the proceeds of
crime and additional electronic devices, prevent
destruction of electronic and documentary
evidence, prevent influencing of witnesses and
prevent the accused persons from absconding. The
Investigating Officer has also recorded specific
reasons for not issuing notice under Section
35(3) BNSS, stating that release of the accused
on notice was likely to prejudice the
investigation by facilitating destruction of
evidence, influencing witnesses and absconding.
Upon an independent examination of the
materials available in the case diary, I find
that the reasons recorded by the Investigating
Officer are neither mechanical nor arbitrary
and, at this stage, disclose due compliance with
the mandate of Sections 35 and 36 BNSS. Prima
facie, the arrests can-not be said to be illegal
and rather they have been effected on reasonable
and cogent grounds.
14. Section 35 of the BNSS, 2023, especially Clause C,3 provides
that the police officer has reason to believe on the basis of that
information that such person has committed the said offence. The
Clause is extracted herein below:-
(c) against whom credible information has been
received that he cognizable punishable with
imprisonment for a term which may extend to more
than seven years whether with or without fine or
with death sentence and the police officer has
Page No.# 14/15reason to believe on the basis of that
information that such person has committed the
said offence:
15. Thus, having considered the Note of the I.O. for effecting
arrest of the accused herein, in the light of the proposition laid down
in the case of Arnesh Kumar (supra) Satinder Kumar
Antil(supra) (i) and Satinder Kumar Antil(supra) (ii),
this court is unable to derive satisfaction in respect of compliance of
the said proposition by the I.O., though, however, the learned
Magistrate has recorded its satisfaction that the reasons recorded by
the Investigating Officer are neither mechanical nor arbitrary and
that the mandate of Sections 35 and 36 BNSS are complied with and
that the arrests can-not be said to be illegal.
16. The Note, so recorded by the I.O. in the forwarding report, to
the considered opinion of this Court, is not the substantial
compliance of the provision of Section 35(3) BNSS, 2023. He has not
recorded his satisfaction and also not recorded the facts, in arriving
at the conclusion for arrest, as required under Section 35(5), BNSS
though he had given some reason, as required in paragraph No. 7.1
and 7.2., of the decision in Arnesh Kumar (supra). This failure to
facts and satisfaction, furnishes a strong ground for bail.
17. As the arrest was made by the I.O. in contravention of the
guidelines laid down by Hon’ble Supreme Court in Satender Kumar
Antil (supra) the arrest so made remains vulnerable, and the
Magistrate’s later recording of satisfaction after seeing the case diary
does not wipe out/mitigate the non-compliance. To the considered
Page No.# 15/15opinion of this Court the accused are entitled to bail on that ground.
18. Further, the controlling principle, that can be deduced from the
decision of Hon’ble Supreme Court in Satender Kumar Antil
(supra)(ii) is that the statutory scheme must be followed in letter
and spirit, and unjustified arrest furnishes a strong ground for bail.
19. This Court has considered the submission of Mr. Borthakur,
learned Additional P.P. and also gone through the case diary
produced by him. It is a fact that the I.O. has collected some
incriminating materials against the present accused. But, when the
arrest of the accused is rendered illegal for being made the same in
contravention of the guidelines laid down by Hon’ble Supreme Court
in Satender Kumar Antil (supra), the materials available in the
case diary would not render any assistance to Mr. Borthakur.
Therefore, this Court is not inclined to accept his argument.
20. In the result, this Court finds sufficient merit in this petition and
accordingly, the same stands allowed. It is provided that on
furnishing a bond of Rs.25,000/ (Rupees twenty five thousand) with
one surety of like amount to the satisfaction of the learned Chief
Judicial Magistrate, Barpeta, the accused shall be enlarged on bail.
21. In terms of above, this petition stands disposed of.
JUDGE
Comparing Assistant
