Page No.# 1/7 GAHC010220002025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3200/2025 SRI BIPUL KUMAR DAS ALIAS BIPUL DAS SON OF HARESWAR DAS, RESIDENT OF GANAKPARA, JAJI GAON, P.O. LOHARGHAT, P.S. PALASHBARI, DISTRICT - KAMRUP, ASSAM VERSUS UNION OF INDIA REP. BY THE STANDING COUNSEL, CUSTOMS DIVISION. Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : SC, CUSTOMS, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 25.11.2025 1. Heard Mr. B. K. Mahajan, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel for the Customs. 2. This application under Section 483 of BNSS 2023 has been filed by the petitioner, namely, Sri Bipul Kumar Das @ Bipul Das, who has been detained behind the bars since 05.09.2024 in connection with NDPS Case No. 59/2025 Page No.# 2/7 arising out of Customs Case No. 01/CL/NARC/AS/GAU/2024-25 under Sections 8(c)/20(b)(ii)(c) of NDPS Act, 1985. 3. The gist of accusation in this case is that on 04.09.2024, at about 11.45 hours, the Officer of Anti-Smuggling unit, Guwahati Customs Division, had received information through reliable sources that one person, namely, Bipul Kumar Das (the present petitioner) had stocked narcotic substances, believed to be ganja, at the backyard of his house. On receipt of the said information, a team of Customs Officials was called and they rushed to the house of the present petitioner. 4. During search operation, the petitioner was not there. However, his wife Mrs. Swapna Das was found there and, during search, 41 (forty-one) numbers of gunny bags were found, containing suspected ganja therein. On weighing of the recovered contraband, the weight of same was found to be 511.175 kilograms. 5. The learned counsel for the petitioner has submitted that the petitioner had earlier approached this Court seeking bail by filing Bail Application No. 2058/2025, however, on that occasion the prayer for bail was rejected by this Court by its order dated 26.08.2025. He, however, submits that on that occasion, the petitioner had not taken any plea regarding violation of the fundamental rights guaranteed to him under Article 22(1) of the Constitution of India as well as Section 48 of BNSS, 2023. He submits that this time,the main plea of the petitioner seeking bail is regarding non-communication of grounds of arrest in writing to the friend/relative/nominated person of the petitioner at the time of his arrest as mandated under Section 48 of BNSS. He submits that though the prosecution side has shown that the notice under Section 48 of BNSS has been served on the brother-in-law of the petitioner, namely, Shri Page No.# 3/7 Chandradhar Das and though a copy of notice dated 05.09.2024 has been relied upon by the prosecution side to show the compliance of Section 48 of BNSS, however, he submits that there is no endorsement on the said notice or the signature of the said Chandradhar Das to indicate that the said notice was actually served on him or that he had received the said notice. 6. He further submits that though in the said notice which is purported to be a notice under Section 48 of BNSS, it has been stated that the said Chandradhar Das has been intimated about the arrest of the present petitioner over mobile phone at his mobile No. 9957692998, this cannot be regarded as compliance of mandate of Section 48 of BNSS as well as Article 22(1) of the Constitution of India as the requirement of furnishing the grounds of arrest, in writing, to the friend/relative/nominated person of the accused is a mandatory requirement and any violation of the said mandatory norm would entitle the petitioner to be released on bail. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Ahmed Mansoor and Ors. Vs. State, represented by Assistant Commissioner of Police and Anr. (Criminal Appeal No. 4505/2025). 7. On the other hand, learned counsel for the Customs Department has vehemently opposed the grant of bail to the petitioner on the grounds that the contraband seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of NDPS Act is applicable in this case. She submits that the petitioner was informed about the grounds of arrest by serving notice under Section 47 of BNSS. She further submits that the recovery of contraband was from the premises of the present petitioner. She also submits that so far as the compliance of notice under Section 48 is concerned, the said notice was served on one Chandradhar Das, who is the brother-in-law of the present petitioner, in Page No.# 4/7 person. 8. She also submits that the Chandradhar Das was present when the statement of the wife of the present petitioner was recorded and at that time notice was served on him. To show the presence of Chandradhar Das at the time when the statement was recorded of the wife of the present petitioner, she has referred to a certificate given by the said Chandradhar Das to that effect. 9. She further submits that the brother-in-law of the petitioner, namely, Chandradhar Das was also intimated about the grounds of arrest over telephone at his mobile number and, therefore, there is no violation of the mandate of Section 48 of BNSS as well as Article 22(1) of the Constitution of India in this case. The learned counsel for the Customs also submits that as there has been substantial compliance of requirement of furnishing notice under Section 48 of BNSS to the friend/relative/nominated person of the petitioner in this case, minor procedural lapse in complying the procedural requirement, in case where the offence involved is a serious nature as in this case, the benefit of grant of bail should not be granted to the petitioner. In support of her submissions, she has cited a ruling of the Apex Court in the case of “Radhika Agarwal Vs. Union of India and Ors” reported in “2025 0 Supreme (SC) 405”. 10. I have considered the submissions made by the learned counsel for both sides. 11. The Apex Court in the case of “Vihaan Kumar Vs. State of Haryana & Anr.” reported in “(2025) 5 SCC 799” has observed that the requirement of communicating the grounds of arrest, in writing, is not only to the arrested person but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person so as to make the mandate of Page No.# 5/7 Article 22(1) of the Constitution of India meaningful and effective, failing which such arrest rendered illegal. 12. Apart from the ruling in the case of “Vihaan Kumar Vs. State of Haryana & Anr.” (supra), in a catena of decisions the Apex Court has observed that the compliance of mandatory constitutional requirements are non-negotiable. If lapse of a mandatory procedural requirements results into violation of the fundamental rights of the petitioner guaranteed to him by the provisions of the Constitution of India, it would result into the petitioner getting the benefit of constitutional provisions. The communication of grounds of arrest, in writing, to the friends/relatives/nominated person of an arrestee is a mandatory constitutional requirement and any violation of such a mandatory norm would render the arrest of an arrestee vitiated, resulting into the grant of bail to such an accused. 13. In the instant case, though prosecution side has stated that notice under Section 48 of BNSS has been served on one Chandradhar Das, who is brother-in-law of the petitioner, however, apart from mere statement there is nothing on record to show that the said notice was served on said Chandradhar Das. There is no signature of Chandradhar Das on the said notice neither there is anything to show that the said notice was actually received by him. There is also no endorsement to indicate that the said Chandradhar Das has ever refused to put his signature thereon. 14. Mere statement in the said notice that Chandradhar Das has been intimated about the arrest of the petitioner over mobile phone cannot be regarded as compliance of the requirement of communicating the grounds of arrest, in writing, to the friends/relatives/nominated person of the present petitioner. Mere presence of said Chandradhar Das at the time when the Page No.# 6/7 statement of the wife of the petitioner was recorded is also not sufficient to dispense with the mandatory requirement of communicating the grounds of arrest, in writing, to friends/relatives/nominated person of the present petitioner. 15. Though, the wife of the petitioner was also present when the arrest was made, however, there is no material on record to indicate that the communication of grounds of arrest, in writing, was made even to her. 16. When the petitioner has categorically contended that grounds of arrest were not communicated, in writing, to the friends/relative/nominated person of the petitioner at the time of his arrest, it is obligatory on the part of the prosecution to show that same was done by producing cogent materials in support of their contention. However, the prosecution side has miserably failed, in this case, to show that the purported notice under Section 48 of the BNSS, was in fact received by the brother-in-law of the petitioner or for that matter by any other friends/relative/nominated person of the petitioner. 17. Under such circumstances, due to violation of the fundamental rights guaranteed to the petitioner under Article 22(1) of the Constitution of India, his arrest itself gets vitiated and on that ground, he is entitled to get bail. 18. In view of the discussions and reasons mentioned above, the above named petitioner is allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakhs) with two sureties of like amount subject to the satisfaction of the Trial Court with following conditions:- i. That the petitioner shall co-operate in the trial of NDPS Case No. 59/2025 pending in the Court of the learned Additional Sessions Judge No. 3, (FTC), Kamrup(M), Guwahati, Page No.# 7/7 ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner 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 petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card as well as, mobile number, and other contact details before the Trial Court; v. That the petitioner 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 petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 19. This bail application is accordingly disposed of. JUDGE Comparing Assistant