Page No.# 1/10 GAHC010210092025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2703/2025 MD RIYAJ KHAN S/O MD. ABDUL ALI RESIDENT OF SORA MAKHA LEIKAI IRENGBAND PO KAKCHING PS KAKCHING DISTRICT KAKCHING THOUBAL STATE MANIPUR PIN 795103 VERSUS UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL NCB ------------ Advocate for : MR D MEDHI Advocate for : SC NCB appearing for UNION OF INDIA Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 12.11.2025 1. Heard Mr. K. Thakur, the learned counsel for the petitioner. Also heard Ms. M. Deka, the learned standing counsel for the NCB. 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, Md. Riyaj Khan, who is detained behind the bars since 16.12.2024 in connection with the NDPS Case No. 145/2025 arising out of the NCB Crime No. 12/2024 under Section 8(c)/22(c)/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 15.12.2024 at about 9.00 a.m., the Inspector Narcotic Control Bureau, Zonal Unit Guwahati had received an information through reliable sources regarding carrying of a huge quantity of methamphetamine tablets by three persons including the present petitioners from Manipur to Guwahati inside a Maruti vehicle bearing registration no. AS-17D- 0983. 4. Accordingly, a search team was constituted and search operation was carried out. During search operation, the present petitioner was found as occupant of the Maruti vehicle bearing Registration No. AS-17D-0983 and on search, 1.860 kgs of methamphetamine tablets were recovered therefrom. 5. The learned counsel for the petitioner has submitted that the petitioner has approached this Court, mainly on the ground of Page No.# 3/10 violation of the mandatory requirement of furnishing the grounds of arrest to the petitioner in proper form as well as also regarding service of notice under Section 48 of the BNSS, 2023 to the relative/friends/nominated person of the petitioners at the time of the arrest. 6. The learned counsel for the petitioner submits that though in the notice served on the petitioner under Section 47 of the BNSS, 2023, it has been stated that he was arrested in connection of seizure of 1.860 kgs of methamphetamine tablets, however, it has not been clarified therein as to from whom the seizure was made. He submits that in the notice, no indication has been given as to how the present petitioner was linked with the seizure of the contraband in this case. Hence, he submits that the basic facts which necessitated the arrest of the petitioner was not stated in the notice under Section 47 of the BNSS, 2023. 7. He further submits that as regards notice under Section 48 of the BNSS, 2023, though it has been stated that the notice in respect of petitioner Md. Riyaj Khan, was sent to Md. Abdul Ali, however, there is nothing on record to indicate that whether the notice was received by the said person or not, however, no materials are there to show as to whether the said notice has been received by the addressee or not. 8. Further, the learned counsel for the petitioner has also submitted that at the time of preparation of arrest memo after the arrest of the petitioner, the signatures of independent witnesses were not obtained on the arrest memo as required under law and, Page No.# 4/10 therefore, he submits that there has been violation of mandatory statutory provisions of law which entitles them to get bail in this case. 9. In support of his submission made by the learned counsel for the petitioner, he has cited ruling of the Apex Court in the following cases :- i. “Vihan Kumar Vs. State of Kerala reported in 2025 SCC online, SC 269” ; ii. “Praveen Prakash Rao Vs. State of Kerala” reported in 2009 (1) KLT 259. iii. “Prabir Purkaystha Vs. State (NCT of Delhi)“ reported in 2024 SCC Online SC 934; iv. “Ahmed Mansoor Vs. State (represented by Assistant Commissioner of Police)” (Criminal Appeal No. 4505/2025) 10. On the other hand, Ms. M. Deka, the learned standing counsel for the NCB has vehemently opposed the grant of bail to the petitioner on the ground that in the instant case, the contraband seized from the petitioners is of commercial quantity, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case. 11. She further submits that the notice issued to the petitioner under Section 47 of the BNSS, 2023, was served on the petitioner himself and in acknowledgment thereof, he has put their signatures in the said notice. She also submits that the notice clearly gives an Page No.# 5/10 indication that the arrest of the petitioner was in connection of seizure of 1.860 kgs of methamphetamine tablets and, therefore, she submits that the basic facts which necessitated the arrest of the petitioner in the above noted case were clearly stated in the notice under Section 47 of the BNSS, 2023. 12. She further submits that, as regards to the notice under Section 48 of the BNSS, 2023 is concerned, the Investigating Officer has stated in the final complaint submitted in this case, that the said notice was sent to the relatives of the petitioner whose name was mentioned in the said notice through the registered post with A/D, however, he has not received any information regarding service of notice on the addressee. 13. The learned counsel for the NCB, however, submits that at the time of the arrest of the petitioner, on the body of the notice under Section 47 of the BNSS, 2023 itself, the petitioner has acknowledged the fact, in his own handwriting, that he has intimated about his arrest through his relative over telephone. She, therefore, submits that there has been full compliance of the requirement of furnishing grounds of arrest in writing to the relatives of the arrested person in this case. 14. She further submits that in addition to acknowledging the fact of intimation about his arrest to his relative the petitioner has also specifically mentioned the mobile numbers over which calls were made to the relative of the petitioner. She, therefore, submits that there has been no violation of the mandatory requirement of communicating grounds of arrest, in writing, either to the petitioner Page No.# 6/10 or to his relatives/friends/ nominated person, as mandated under Section 47 and 48 of the BNSS, 2023, respectively. She, therefore, prays for dismissing this bail application. In support of her submission, she has cited the following orders of the co-ordinate benches of this court: i. Sri Chandrajoy Jamatiya and Another Vs. Union of India (DRI) (Bail Application No. 1660/2024) ii. Amir Khan and Others Vs. Union of India (Bail Application No. 2088/2025) 15. I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record, including the scanned copy of the records of the Trial Court, which was the requisitioned in connection with this case. 16. The main contentions of the learned counsel for the petitioner on which the petitioner is seeking bail in this case is non-disclosure of basic fact which necessitated the arrest of the petitioner in the aforementioned case. It appears that though, in the notice served under Section 47 of the BNSS, 2023 to the petitioner, it is stated that the petitioner has been arrested in connection with NCB Case No. 12/2024 for violation of the provisions of the NDPS Act, 1985 in connection with seizure of 1.860 kgs of methamphetamine tablets and the case is a non-bailable case, however, on a bare perusal of the notice, it cannot be comprehended as to from where the contraband was recovered and how the petitioner is linked with the same. If the contraband was recovered from the possession of the Page No.# 7/10 petitioner, this court fails to understand why the same was not communicated clearly to them. The notice under Section 47 of the BNSS, 2023 should clearly state the accusation against the arrested person and how he is connected with the alleged offence. In the instant case, the notice under Section 47 of the BNSS, 2023, though, cryptically states that the petitioner is arrested in connection with seizure of 1.860 kgs of methamphetamine tablets, however, falls short of clearly indicating as to how the petitioner was linked with the seizure of contraband. This court fails to understand as to what prevented the arresting authorities to clearly indicate the accusations against the petitioner in the notice under Section 47 of the BNSS, 2023 served on them. Since, it is no longer res-integra that communication of grounds of arrest in writing to an arrestee is a mandatory constitutional requirement and non- compliance of the same vitiate the arrest of such an arrestee, this Court is of the considered opinion that the notice served on the petitioner under Section 47 of the BNSS, 2023 falls short of clearly indicating the ground of arrest including the basic facts which necessitated the arrest of the petitioner in the aforesaid case. 17. As regards the applicability of the observations of the Apex Court in the case of “State of Karnataka Vs. Sri Darshan” (Supra) regarding absence of demonstrable prejudice to the petitioners in this case is concerned, this Court is of the considered opinion that as Division Bench of this Court in the case of “National Investigating Agency Vs. Thangminlen Mate @ Lenin (Order dated 21.08.2025 in Criminal Appeal No. 234/2024) has observed that in view of the judgment of Page No.# 8/10 the constitution bench of the Apex Court in the case of “National Insurance Co. Ltd vs Pranay Sethi” (Supra) it is the judgement of the Apex Court in the case of “Vihaan Kumar Vs. the State of Haryana” (Supra) which would be binding on this Court and not the judgment in the case of “State of Karnataka Vs. Sri Darshan” (Supra). 18. As regards the question as to whether the notice under Section 48 of the BNSS, 2023 was properly served on the friends/relatives/nominated persons of the petitioner, apart from the fact that in the final complaint petition, the NCB has stated that said notice was sent to the relative of the petitioner by the registered post with A/D, nothing could be shown in the record like the postal receipt showing the actual sending the notice to the relative of the petitioner soon after the arrest of the petitioner or the postal track consignment report to indicate that the notice was actually received by the person to whom it were shown to be sent. 19. 19. When the petitioner has contended that notice under Section 48 of the BNSS, 2023 was not received by his relatives/friends/nominated persons, the burden shifts on the prosecution side to show that the said notices were actually served on such persons. As communication of grounds of arrest in writing to the relatives/friends/nominated persons of an arrestee is not a mere procedural formality, rather same is mandatory constitutional requirement, the arresting authority, therefore, may not be allowed to water down the said mandatory constitutional requirement. Any authority exercising the powers of arrest is bound to comply with the mandatory constitutional requirement. The NCB (arresting Page No.# 9/10 authority in this case) has fallen short of complying with the said constitutional requirement while arresting the petitioner in this case. The plea that the offences involved in this case are serious in nature may not be allowed to be used as license to whittle down the mandatory constitutional requirements. 20. For the reasons mentioned above, the petitioner is entitled to get bail in this case for failure of the arresting authority to comply with the mandatory requirement of communicating grounds of arrest in writing to the petitioner in its true perspective. 21. Accordingly, the above named petitioner is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the Trial Court with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No 145/2025, which is pending in the Trial Court; 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 Page No.# 10/10 PAN card, 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. 22. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant