Page No.# 1/8 GAHC010044112025 2025:GAU-AS:6553 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./631/2025 JALAL HOQUE AND ANR S/O- LATE FAZAL HOQUE R/O- HALDIAPATHER VILLAGE, PS KALGACHIA, DIST- BARPETA, ASSAM 2: AINUL ALI S/O SRI ASKAR ALI R/O KUCHRIMARA VILLAGE P.S. MANKACHAR DIST. SOUTH SALMARA ASSAM PH-957772646 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR D MEDHI, MR K THAKUR,MR. S SARKAR Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK O R D E R 23-05-2025 Heard Mr. K Thakur, learned counsel for the petitioners and Mr. K K Parashar, learned Additional Public Prosecutor, Assam for the State. 2. The petitioners, namely, (i) Sri Jalal Hoque, son of Late Fazal Hoque, resident of Village-Haldiapather, Police Station-Kalgachia, District-Barpeta, Assam and (ii) Sri Ainul Ali, son of Sri Askar Ali, resident of Village-Kuchrimara, Police Station-Mankachar, District-South Salmara, Assam have filed this application under Section 483 BNSS, 2023 on 28.02.2025 praying for their bail in Special (NDPS) Case No. 44/2024 arising out of Harangajao Police Station Case No. 15/2024 corresponding to G.R. No. 151/2024, where trial of said NDPS case is going on before the Court of learned Special Judge (NDPS), Dima Hasao at Haflong under Section 21(c) of the NDPS Act, 1985, in which, they were arrested on 14.09.2024 and are in custody since then. 3. The petitioners contended that they are no way connected or involved with the offence alleged and they have been falsely implicated in the case. The Court of learned Special Judge (NDPS), Dima Hasao at Haflong in said Special (NDPS) Case No. 44/2024 framed charges against them on 07.01.2025 under Section 21(c) of the NDPS Act, 1985. As such, considering their detention since 14.09.2024, the petitioners have prayed for their bail in said Special (NDPS) Case No. 44/2024. 4. By filing an additional affidavit on 08.05.2025, the petitioners submitted that at the time of their arrest on 14.09.2024 in said Harangajao P.S. Case No. 15/2024, Notices under Sections 47 and 48 of the BNSS, were not served properly as required under Sections 47 and 48 of the BNSS, 2023 as well as the law laid down 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 & Anr., reported in (2025) SCC OnLine SC 269. 5. In that regard, the petitioners annexed the Notices issued under Sections 47 and 48 of Page No.# 3/8 the BNSS to them by the concerned Investigating Officer of the case on 14.09.2024 as Annexure-1 to their said additional affidavit. 6. The Court by order dated 06.03.2025 called for the records of Special (NDPS) Case No. 44/2024 along with the records of Harangajao P.S. Case No. 15/2024. 7. As per the FIR dated 14.09.2024, the prosecution case is that source information was received that a white colour Maruti Celario vehicle coming from the side of Silchar towards Haflong carried suspected Heroin for selling. As such, on the intervening night of 13.09.2024 and 14.09.2024 in a Naka checking at NH-27 at Ditokcherra Police Check post (under the jurisdiction of Harangajao Police Station) near Council check gate, the suspected white colour Maruti Celario vehicle bearing registration No. AS-01-FT-4508 was intercepted with the present two petitioners inside the said vehicle where petitioner No.1, Sri Jalal Haque was driving the said vehicle accompanied by Sri Ainul Ali, petitioner No.2. Both the petitioners and the vehicle were checked in presence of independent witnesses following the due procedure and during such checking, 5 nos. of soap cases were recovered from inside of the front passenger side dashboard and another 25 nos. of soap cases were recovered from inside of the left side rear door. From those soap cases, 340 gms. of suspected Heroin was recovered. The suspected drugs were accordingly seized along with the said white colour Celario Maruti vehicle and those materials along with the petitioners were brought to the Harangajao Police Station. Accordingly, the FIR was lodged on 14.09.2024 before the Harangajao Police Station that was registered as Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 corresponding to G.R. No. 151/2024. 8. From the records of the case that was called for by order dated 06.03.2025, it is seen that the FSL report dated 08.10.2024 confirmed the seized items recovered from the conscious possession of the petitioners in the case to be Heroin. 9. After completion of the investigation of the case, the Investigating Officer on 31.10.2024 submitted the charge-sheet in said Harangajao P.S. Case No. 15/2024 under Sections 21(c)/27(a)/29 of the NDPS Act corresponding to G.R. No. 151/2024 against the petitioners. After filing of the charge-sheet in said Harangajao P.S. Case No. 15/2024 on 31.10.2024 the said case was registered as Special (NDPS) Case No. 44/2024 before the Page No.# 4/8 Court of learned Special Judge (NDPS)-cum-Sessions Judge, Dima Hasao at Haflong. On 07.01.2025 charge under Section 21(c) of the NDPS Act was framed against both the accused petitioners and the said Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 is pending in the stage of recording of evidence of the prosecution witnesses. 10. Sections 47 and 48 of the BNSS, 2023 read as under:- “ Section 47 : 47. Person arrested to be informed of grounds of arrest and of right to bail. – (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Section 48 : 48. Obligation of person making arrest to inform about arrest, etc., to relative or friend. – (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or mentioned by the arrested person for the purpose of giving such information and also to the designated police officer in the district. (2) The police officer shall inform the arrested person of his rights under sub- section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub- Page No.# 5/8 section (3) have been complied with in respect of such arrested person.” 11. The Notices under Section 47 of BNSS issued to the petitioners at the time of their arrest on 14.09.2024 by the Investigating Officer of said Harangajao P.S. Case No. 15/2024, receipt of which were also acknowledged by the petitioners read as follows:- “U/S-47 BNSS NOTICE OF INFORMATION (Information to arrested person on grounds of arrest and right to bail) To, Sri/Smt.-Jalal Hoque, 33 years SO/DO/WO:-Lt. Fozal Hoque R/O.:- Haldiapathar Village P.S.:- Kalgachia Dist:-Barpeta Ph. No. 7577959146/7086472107 You are hereby informed vide notice that you have been arrested in connection with the below referred case/circumstances. The case is Non-Bail able to police. So, you have been produced before Hon’ble Court, Dima Hasao. You may submit petition before Hon’ble Court. Ref:- Harangajao PS C/No. 15/24 U/S-21(c)/27(a)/29 NDPS Act Date & time of arrest: 14/09/2024 & 01:45 P.M. Place of arrest : At Harangajao PS. Signature of arrested person: Sd/- Illegible Jalal Hoque Signature of the arresting officer Sd/- Illegible 14.09.2024 Investigating Officer of the case” “U/S-47 BNSS NOTICE OF INFORMATION (Information to arrested person on grounds of arrest and right to bail) To, Sri/Smt.-Ainul Ali, 24 yrs SO/DO/WO:-Askar Ali R/O.:- Kuchnimara Village P.S.:- Mankachar Dist:-South Salmara Page No.# 6/8 Ph. No. 9101751229 You are hereby informed vide notice that you have been arrested in connection with the below referred case/circumstances. The case is Non-Bail able to police. So, you have been produced before Hon’ble Court, Dima Hasao. You may submit petition before Hon’ble Court. Ref:- Harangajao PS C/No. 15/24 U/S-21(c)/27(a)/29 NDPS Act. Date & time of arrest: 14/09/2024 & 01:45 P.M. Place of arrest : At Harangajao PS. Signature of arrested person: Sd/- Illegible AYNUL ALI Signature of the arresting officer Sd/- Illegible 14.09.2024 Investigating Officer of the case” 12. From the records of the case, it is seen that Notices under Section 48 BNSS were issued to the wife of the petitioner No. 1 and father of the petitioner No. 2 in their respective addresses and those were forwarded to them by the concerned Investigating Officer through W.T. messages sent through the respective local police stations. 13. On perusal of the Notices under Section 47 BNSS issued to the petitioners by the concerned Investigating Officer of the case and on reading the provisions of Section 47 BNSS, 2023, noted above, it can be seen that the concerned Investigating Officer of the case while arresting the petitioner on 14.09.2024 in said Harangajao P.S. Case No. 15/2024 did not comply with the provisions of Section 47 of BNSS as stipulated under the law and thereby violated the provisions of Article 22 of the Constitution of India. 14. 14. Considering such materials in the case records, the Court found that the petitioners are entitled for their bail in said Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024. 15. Accordingly, the petitioners, namely, (i) Sri Jalal Hoque, son of Late Fazal Hoque and (ii) Sri Ainul Ali, son of Sri Askar Ali, be released on bail in said Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 corresponding to G.R. No. Page No.# 7/8 151/2024, on furnishing a bail bond of Rs.2,00,000/- each, with 2 (two) local sureties each of the like amount, one of which shall be a Government Employee, either Central or State Government, permanently serving in the State of Assam, to the satisfaction of the learned Special Judge (NDPS)-cum-Sessions Judge, Dima Hasao at Haflong subject to the conditions that the petitioners, named above – (i) shall not leave the territorial jurisdiction of the learned Special Judge (NDPS)- cum-Sessions Judge, Dima Hasao at Haflong without obtaining prior written permission from the said authority, till disposal of said Special (NDPS) Case No. 44/2024; (ii) shall regularly attend the Trial before the learned Special Judge (NDPS)-cum- Sessions Judge, Dima Hasao at Haflong in said Special (NDPS) Case No. 44/2024 and shall co-operate with the said Special Court during the trial of the said case till its disposal; (iii) shall not hamper with the investigation, or tamper with the evidence of the case; (iv) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer; and (v) shall not indulge themselves in any such criminal activities including possession or procurement, transportation and selling of any such NDPS items. 16. Violation of any of the aforesaid conditions by the petitioners, (i) Sri Jalal Hoque and (ii) Sri Ainul Ali, the bail granted to them in the aforesaid Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 shall stand automatically vacated. 17. It is also made clear that the learned Special Judge (NDPS)-cum-Sessions Judge, Dima Hasao at Haflong shall be at liberty to impose any other conditions, as it deems fit and proper Page No.# 8/8 at the time of releasing the accused petitioners on bail in said Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 to secure their attendance till the conclusion of the trial of said Special (NDPS) Case No. 44/2024. 18. It is observed that this order relates to bail of the accused petitioners, namely, (i) Sri Jalal Hoque and (ii) Sri Ainul Ali, in said Special (NDPS) Case No. 44/2024 arising out of Harangajao P.S. Case No. 15/2024 and not on merits of the case. 19. Petitioners, named above, be released on bail accordingly, if not required in any other criminal case. 20. With the above observation and direction, this bail application stands disposed of. JUDGE Comparing Assistant