Page No.# 1/6 GAHC010258402025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3771/2025 SHRI SUJONUR ROSHID S/O HARANUR RASHID, R/O SIALI, SALPARA MOLANDUBI PT 1, PO KRISHNAI,PS KRISHNAI, DIST GOALPARA, ASSAM, PIN 783126 VERSUS UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, DRI Advocate for the Petitioner : MR D MEDHI, MR. S SARKAR,S YESMIN,MR. J N SUWAI Advocate for the Respondent : SC, DRI, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER 16.02.2026 1. Heard Ms. S. Yesmin, learned counsel appearing for the accused petitioner as well as Ms. P. S. Chakraborty, learned standing counsel, DRI. 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused- petitioner, namely, Sujonur Roshid , praying for grant of bail in connection with NDPS Case No.315/2024 arising out of Page No.# 2/6 DRI Case No. 26/CL/NDPS/MORPHINE/DRI/GZU/2023-24 under Section 21(c) /22(c)/23(c) & 29 of NDPS Act. 3. The allegations in the FIR is that based on an information, the Kanchanjunga Express coming from Agartala on the way to Sealdah in West Bengal, Kolkata was searched with regard to the petitioner and from his possession morphine tablets were found in three numbers of transparent plastic pouches. The quantity of the said morphine is stated to be 2015 grams and thereby falling in the bracket of commercial quantity. 4. This is a subsequent bail application as the earlier bail petitions filed on behalf of the accused were rejected by this court with the last one on 29/10/2025. 5. Learned counsel for the petitioner contends three new grounds in the subsequent petition – Firstly, notice under 48 BNSS within (Section 50A Cr.P.C. at that time) was not furnished to family member of the accused at the time of his arrest and therefore in terms of the law laid down by the Supreme Court, the petitioner's arrest was vitiated. It is submitted that though the Prosecution has filed the objection but it has not been stated that any such notice has been given. Secondly, there is also infirmity with regard to compliance with the provisions of Section 36 BNSS regarding arrest inasmuch as no proper signatures are available on the arrest memo pertaining to the arrest of the petitioner. Thirdly, though charge-sheet has been submitted on 02.09/2024, the trial has not proceeded and witnesses not examined. In support of her contentions, the learned counsel cites the following Page No.# 3/6 decisions:- (1) Mohd Muslim @ Hussain vs State (NCT of Delhi) reported in SLP No. 915/23. (2) Rabi Prakash vs the State of Odisha reported in 2023 Live Law SC 533. (3) Khangembam Mangi Singh and Anr., BA 3332 of 2023. 6. On the other hand, Ms. Chakraborty, the learned counsel for the DRI fairly submits that upon perusing the scanned record, notice under Section 48 BNSS has not been seen. It is submitted that the arrest memo, however, contains the signature of two persons. It is further submitted by the prosecution that only 8 witnesses are listed in the charge sheet out of which, 2 PWs have been examined so far and that there were some time which had elapsed in between due to the petitioner/accused not engaging a counsel. 7. The scanned TCR has been received. 8. Upon perusing the materials and the scanned record, I find that the accused was arrested in this case on 10/3/2024 and presently in judicial custody and charge sheet was submitted on 05.09.2024. 9. I find force in the contention of the prosecution that the arrest memo is not bereft of any signatures. It is well settled by now that compliance with the notices under Section 47/48 BNSS, (earlier Section 50, 50A Cr.P.C.) are essential to satisfy the mandate of Article 20(1)/21 of the Constitution of India, as has been held by the Hon’ble Supreme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana, Page No.# 4/6 reported in (2025) SCC Online SC 269. It has been held that such compliance is mandatory and in the face of any failure in such compliance, the continued detention of the accused would become untenable and he is required to be granted bail. 10. In the scanned TCR, I find a copy of the notice under Section 50 Cr.P.C., enumerating reasonable details regarding the grounds of arrest. However, I have also not come across in the record, any notice under 50A CrPC given to family member of the petitioner. 11. Relying on the case of State of Karnataka vs Sri Darshan reported in Criminal Appeal Nos. 3528 - 3534 of 2025 the prosecution submits that perhaps substantial compliance and test of prejudice could be applied in these matters at this stage, considering the serious nature of the alleged offenses. 12. On the other hand, the learned counsel for the petitioner contends and submits that in the face of non-compliance with these statutory notices, the clear law laid down in Prabir Purkayastha (Supra) and Vihaan Kumar (Supra) regarding the continued detention being untenable should be applied. 13. I have given my consideration to the matter. 14. In the case of Rabi Prakash (supra), it has been held in Para 4 as follows: “As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent- State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re:formation of opinion as to whether there are reasonable grounds to believe that the petitieonr is not guilty, the Page No.# 5/6 same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 15. Considering the fact that the notice under Section 50A CrPC (corresponding to Section 48 BNSS at present) is not shown to have been given to the family member as mandated by the law – therefore, the applicability of the clear principles laid down in Prabir Purkayastha (Supra) and Vihaan Kumar (Supra) cannot be overlooked and the petitioner cannot be deprived of availing the benefit of these clear provisions laid down by the Hon’ble Apex Court – holding that in such a situation, the petitioner will be entitled to be granted bail and that, this would be so, even if there are statutory restrictions like Section 37 of the NDPS Act. 16. In any case, the petitioner has been in under trial detention for a considerable period since 10/3/2024 and out of the 8 witnesses listed in the sheet, the trial so far has encompassed examination of only 2 witnesses. 17. Therefore, in the given facts and circumstances and in terms of the law laid down by the Supreme Court in Prabir Purkayastha (Supra) and Vihaan Kumar (Supra), I am of the considered opinion that the continued detention of the petitioner would be untenable and he is required to be granted bail at this stage. 18. Accordingly, it is provided that the accused petitioners, named above, shall be released on bail of Rs.75,000/- with one suitable surety Page No.# 6/6 of like amount to the satisfaction of learned concerned court, subject to the following conditions that the petitioners: (a) shall be available during the remaining trial. (b) shall not hamper or tamper with the evidence. (c) shall not in any manner indulge in any illegal activities, including any activities prohibited under the NDPS Act. 19. Violation of any bail conditions shall entail cancellation of bail. 20. Accordingly, this bail application stands allowed and disposed of. JUDGE Comparing Assistant