Page No.# 1/10 GAHC020004482025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Bail Appln./11/2025 SHRI. SAHAB UDDIN SON OF SHRI ABDUL MANNAF, R/O DHUPAGURI, NAGAON, ASSAM VERSUS STATE OF NAGALAND NAGALAND KOHIMA Advocate for the Petitioner : SENTIYANGER, MAONGKALA,YUKHAKOKLA,WAPANGLEMLA,NOCKLEI M KONYAK,KONLI BUCHEM,V ANNE THERIE Advocate for the Respondent : P.P, NAGALAND, B E F O R E HON’BLE MR. JUSTICE PRANJAL DAS ORDER 01.09.2025 Heard Mr. Sentiyanger, learned counsel for the petitioner. Also Heard Ms. S. Mere, learned Public Prosecutor appearing for the State respondent. 2. The instant bail application has been filed under Section 483 of Page No.# 2/10 the BNSS, 2023, seeking regular bail for the accused namely, Sahab Uddin, who is stated to have been arrested on 05.05.2025 in connection with Special Case No.09/2025, arising out of Kohima Narcotic P.S. Case No.05/2025 registered under Section 21(C)/60 NDPS Act R/W 61 BNS, 2023. 3. The case arose out of Suo-Motto FIR dated 05.05.2025 lodged at the Narcotic PS, Kohima, with the allegation that an information was received with regard to transporting of illegal narcotic drugs from Manipur to Nagaland, which was made into GDE No.8 of Narcotic police station, Kohima, Nagaland and on the same day, a checking was laid at Phesama village-New Reserve area. 4. It is further alleged that during the checking, one white Xylo vehicle bearing No.NL07H-6998 was detained and after questioning the driver Sahab Uddin (co-accused) who displayed suspicious behaviour- the vehicle was searched in the presence of two witnesses and 30(thirty) nos. of soap boxes containing 334 grams of Heroin were found inside the vehicle under concealed/modified fuel tank, which have been structurally altered to include a secret compartment. 5. The present accused, who was stated to be in the vehicle, was arrested on the same day i.e. on 05.05.2025. Both these accused persons are stated to be in judicial custody at present. 6. Heard Mr. Sentiyanger, learned counsel for the accused herein seeking bail. The learned counsel for the petitioner focuses his contentions and arguments mainly on non-compliance with Section- 47 of BNSS, regarding grounds of arrest. 7. Drawing my attention to the said notice available at page- Page No.# 3/10 27/Annexure-4 of the bail application, the learned counsel for the accused submits that though the said document pertaining to ground of arrest enumerates four grounds but they do not satisfy the requirement of Section-47 of BNSS as laid down by Hon’ble Supreme Court in the case of Vihaan Kumar Vs. State of Haryana and Another reported in 2025 SCC OnLine SC 269 - the learned counsel for the accused draws attention to paragraph-21 of the judgment wherein the principles laid down have been summarised. 8. The learned counsel for the accused also submits that the grounds of arrest indicates that it was conveyed to the accused in Nagamese/Hindi stating therein that the accused was conversant with one of those languages. It is also submitted that the narration of the grounds in the notice is in this manner, is inadequate. The learned counsel for the petitioner also submits that the notice under Section 48 BNSS required to be given to the family members of the arrested person has also not been given. 9. As the penal provision given at this stage pertains to commercial quantity (Section-21(C) NDPS Act), the rigours of Section-37 would obviously apply. However, the learned counsel for the petitioner submits that because of the violation of the Constitutional provisions under Article 22(1), in terms of the law laid down in Vihaan Kumar (supra) - the accused should be granted bail and also that, in terms of the law laid down in the case, the rigours of Section-37 would not apply in such a situation. 10. The learned counsel for the accused has also referred to several decisions of this Court, wherein, the accused persons have been granted bail for non-compliance or insufficient compliance with Page No.# 4/10 the notices under Section-47/48 BNSS, including in cases where statutory bar under Section 37 NDPS Act applies. Some of those decisions are:- i) Faruk Ahmed Vs. The State of Assam in Bail Appln. 1173/2025, ii) Nainmal Partap Mal Shah Vs. Union of India and Ors. reported in (1980) 4 SCC 427, iii) Sakib Choudhury Vs. The State of Assam in Bail Appln. 629/2025. 11. The case diary as called for has been received. 12. The learned P.P. has places the case diary before the Court and I have perused the relevant portion of the same. 13. The learned P.P. submits that the allegations are very serious, pertaining to narco trafficking in this part of the country, already afflicted by the menace in a significant manner. The learned P.P. has submits that the grounds of arrest narrated in the document meets the constitutional standards. It is however fairly submitted by the learned P.P. that she could not locate in the case diary, the notice under Section 48 BNSS. 14. I have perused the materials available at this stage, including the investigation materials revealed by the case diary. I have considered the submissions of the learned defence and the learned prosecution. 15. I have perused the principles laid down in the foundational decision of Vihaan Kumar (supra) governing the subject and also decisions of this Court referred to by the learned counsels. I have also perused the bail objection of the I/O placed before this Court by the learned P.P. along with the case diary. Page No.# 5/10 16. Upon perusing the case diary, I find that the investigation has progressed reasonably, but the same is still continuing and not yet completed. The investigation reveals materials which lent support to the allegations. The seizure witnesses, supposed to be independent witnesses, in their statements have supported the allegation of seizure of suspected heroine from a concealed area inside the fuel tank of the vehicle. There are materials which indicate significant implications against the accused persons. The materials also show their linkages with one Habibur Rahman from Assam, stated to be a habitual drug peddler. In the face of such implicating materials, it is not possible to say that the rigours of section-37 NDPS Act is passed in favour of the accused. Even otherwise, considering the materials revealed by the investigation and the stage of investigation - I am of the considered view that, on merits of the case the bail may not be justified at this stage. 17. Before proceeding further, it may be mentioned herein that in the leading judgment of Prabir Purkayastha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana and Another reported in 2025 SCC OnLine SC 269, the Hon’ble Supreme Court has settled the law that the arrested person and his relatives have to be conveyed the proper grounds of arrest; that, the grounds of arrest have to be specific to the particular accused persons as to why he has been arrested by the Investigating Authority and that there are different from reasons for arrest, which have been held to be more generic in nature; that, the grounds of arrest have to be conveyed to the accused in a language that he understands; that, though grounds of arrest should be in writing normally, but in a situation where if it is not, there should be a Page No.# 6/10 contemporious record in the case diary about conveying of such grounds of arrest. 18. In para-21 of Vihaan Kumar (supra), the principles have been summarised and it would be useful to reproduce the said para herein below:- CONCLUSIONS:- 21. 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); 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 Page No.# 7/10 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. 19. Upon perusing the case diary and other materials, I could not find the notice under Section 48 of BNSS required to be given to the relative(s) of the accused pertaining to the grounds of arrest. As far as, the notice under Section 47 of BNSS is concerned, though the grounds mentioned therein meet the standards to a limited extent but I find the said grounds to be more generic in nature and bereft of specific particulars regarding arrest of the accused. The defence has contended that the accused is conversant only in Assamese and Bangla. However, the notice under Section 47 of BNSS states that the grounds of arrest have been conveyed to him in Hindi and Nagamese. It is contended by the defence that the accused has no knowledge of English language. Admittedly, the notice under Section 47 was in English. 20. It has been held by the Hon’ble Supreme Court in Prabir Purkayastha (supra) and Vihaan Kumar (Supra) that non-compliance or inadequate compliance with the provisions of Section-47/48 of BNSS (corresponding to earlier section-50/50A Cr.P.C) would constitute a violation of Article 22(1) of the Constitution of India and would render the arrest illegal and any subsequent detention untenable - thereby entitling the accused to bail on that ground itself. It has also been held that in any such situation, the accused would still be entitled to bail, despite existing of any statutory restrictions such as Section-37 of the NDPS Act. 21. The underlying philosophy behind these principles laid down by the Hon’ble Apex Court is obviously that the Constitutional Page No.# 8/10 provisions require the accused to be properly informed of the grounds of arrest so that he has a clear idea about why his liberty has been curtailed. It is also necessary to enable him to prepare his defence. It is well settled that fair investigation is also an aspect of Article 21 of the Constitution of India. The importance of compliance with the procedural requirements under Article 21/22 of the Constitution of India rest on a higher pedestal than statutory restrictions on bail and therefore, perhaps, the Hon’ble Supreme Court in its wisdom has rightly held that in the face of any violations thereof, the accused should be entitled to bail, despite existence of any such statutory restrictions. 22. Coming to the facts of the instant case, I find that while there seems to be total non-compliance of Section-48 BNSS; even with regard to the notice under Section-47 BNSS - I find that the grounds of arrest are more generic, bereft of the necessary details and would not meet the high standards in terms of the law laid down by the Hon’ble Supreme Court, governing the field. Therefore, I come to the conclusion that the Constitution provisions under Article 22(1) of the Constitution of India stood violated at the time of the arrest of the accused person and therefore, he has become entitled to be granted bail on that found itself, in terms of the settled law. This is despite the finding of the Court that the rigours of Section-37 of the NDPS Act is not passed in favour of the accused and even that otherwise, at this stage of investigation and the materials revealed:- perhaps granting of bail would not have been justified. 23. The judgment in Vihaan Kumar (Supra) was delivered on 07.02.2025 and that in Prabir Purkayastha (supra) even earlier. Page No.# 9/10 24. Thus, it has been several months since the enunciation of this law and the police Departments in different States of the country are believed to have made SOP for proper compliance of these provisions. Therefore, at this stage, it would not be justifiable to make such errors in arrest procedure, especially in serious cases like drug trafficking and thereby enabling the accused to get bail on the ground of such procedural infirmities. The Investigating Officers have to be continually imparted proper training, so that the stipulated procedural requirements regarding arrests are diligently followed, thereby significantly reducing the chances of bail on such procedural infirmities, especially in serious cases. 25. Coming back to the facts of this case - in the backdrop of the given facts and circumstances and the above discussion - the accused namely, Sahab Uddin is allowed to go on bail of Rs. 75,000/- with two sureties of the like amount to the satisfaction of the concerned Court. The following conditions are imposed:- I. The accused shall not abscond. II. He shall cooperate with the remaining part of the Investigation. III. He shall not try to influence or intimidate witnesses. IV. He shall not otherwise hamper or tamper with evidence. V. He shall not in any manner indulge in any illegal activities, including any activities of peddling illegal drugs. 26. In case of violation of any or more of the bail conditions, the Page No.# 10/10 prosecution would be at liberty to move an application before the learned Special Court or this Court for cancellation of the bail. 27. A copy of this order may be placed before the learned DGP, Nagaland for any requisite onward circulation, amongst concerned police officials of Nagaland, the Registry of this Bench shall do the needful. 28. Send back the case diary. 29. The bail application stands allowed and disposed of on the aforesaid terms. JUDGE Comparing Assistant