Page No.# 1/7 GAHC010033112026 2026:GAU-AS:2706 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./507/2026 ARIFUL HOQUE SON OF LT. MOJIRUL HOQUE, RESIDENT OF VILLAGE UDIANA, BALAGAON, P.S. RANGIA DISTRICT- KAMRUP, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : S KAUR, N NEOG,L BANIK Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 23.02.2026 Heard Ms. L. Banik, learned counsel for the accused applicant. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for the State of Assam. 2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, (BNSS)  2023, praying for grant of bail to the accused applicant in connection with Rangia P.S. Case No. 278/2025, registered Page No.# 2/7 under Sections 17(c)/29 of the NDPS Act, 1985. 3. The prosecution case, in brief, is that an FIR was lodged by one WSI Jitumoni Rabha of Rangia Police Station inter alia alleging that on 13.11.2025, credible information was received that a large consignment of narcotic substances had been brought from Manipur by Aitul Ali and his brother, Mamtul Ali @ Mantul Ali. Acting on the said information, a raid was conducted at their residence, and it is alleged that 86 kilograms of opium were recovered. Upon arrival of the police, the said Aitul Ali and Mamtul Ali allegedly fled. Jarina Begum, wife of Mamtul Ali, and certain other persons including the accused applicant present at the premises were apprehended. A sum of Rs. 25,25,400/- was also allegedly recovered. On the basis of the said allegations, the present case was registered. 4. The learned counsel for the accused applicant submits that the arrest of the applicant is illegal, as he was allegedly arrested prior to the registration of the FIR. The second page of the FIR reflects the names of the arrested persons, which renders the arrest procedure doubtful and contrary to law. The applicant was produced before the learned Sub-Divisional Judicial Magistrate, Rangia on 14.12.2025 and has since been in judicial custody. It is further submitted that police custody was never sought, indicating absence of any necessity for custodial interrogation and that the applicant was arrested merely on suspicion. Learned counsel further submits that no incriminating article was recovered from the physical, conscious, or constructive possession of the applicant. The applicant, an e-rickshaw driver by occupation, had merely gone to deliver a bag of rice when he was intercepted by police and taken to the police station, where he was arrested without being informed of the grounds of arrest. He has no connection with the FIR-named accused persons. The Seizure List does not bear Page No.# 3/7 his signature or particulars, and the recovery is shown exclusively from the conscious possession of Jarina Begum. The FIR does not mention the applicant’s name nor attribute any specific role to him. The applicant, aged 23 years and the sole breadwinner of his family, is suffering undue hardship due to his continued incarceration. 5. The learned counsel for the accused applicant submits that no incriminating substance was recovered from his physical, conscious, or constructive possession and that he has been falsely implicated. The accused applicant has no connection with the alleged offence. He is an e-rickshaw driver and had merely gone to deliver a bag of rice when he was intercepted by police and taken to the police station, where he was arrested without being informed of the grounds of arrest. The arrest memo does not bear the petitioner’s signature, and the column meant for the arrested person’s signature is blank, indicating non-compliance with section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The mandatory communication of grounds of arrest has not been complied with. 6. Learned counsel for the accused applicant has relied upon the following decisions of the Hon’ble Supreme Court: In Mihir Rajesh Shah v. State of Maharashtra, reported in (2025) 9 SCC 745, the Hon’ble Supreme Court held that failure to furnish the grounds of arrest within a reasonable time vitiates the arrest. In the present case, neither the time of service of notice nor the time of production before the learned Magistrate is properly reflected, thereby violating Articles 22(1) and 22(2) of the Constitution of India. Further, the notice under Section 48 of the BNSS, allegedly served upon Page No.# 4/7 one Anam Malick, does not disclose any ground implicating the petitioner. The constitutional safeguards relating to arrest and personal liberty have been reiterated by the Hon’ble Supreme Court in Prabir Purkayastha v. State, reported in (2023) 7 SCC 412; Vihaan Kumar v. State of Haryana, reported in (2024) 4 SCC 289, and the aforesaid Mihir Rajesh Shah (supra) case. 7. It is submitted that a co-accused, Jahir Islam, has already been granted bail in B.A. No. 414/2026 on the ground of non-compliance with Section 47 of the BNSS, 2023. Bail has also been granted in similar matters, namely B.A. No. 3796/2025 (Manju Devi vs. UOI) and B.A. No. 2594/2025 (Pankaj Kumar vs. UOI). Learned counsel, therefore, submits that the notice under Section 47 of the BNSS is non est in law and prays that the accused applicant be enlarged on bail on such terms and conditions as this Hon’ble Court may deem fit and proper. It is further submitted that the accused applicant is suffering from a kidney stone requiring surgery and constant medical care, which he cannot receive in judicial custody. The medical documents are annexed as Annexure-F to the application. 8. The learned Additional Public Prosecutor submits that the accused is allegedly involved in the recovery of 86 kgs of opium and cash of Rs. 25,25,400/-, indicating the gravity of the offence. Granting bail at this stage may hamper investigation, allow tampering with evidence, or enable the accused to influence witnesses. Learned Addl. P.P. also submits that note Section 47 of the BNSS,  2023, which mandates that a person arrested must be informed immediately of the grounds of arrest and of the right to bail where the offence is bailable, but this provision does not confer an absolute right to bail in serious and non-bailable offences and does not curtail the Court’s discretion to Page No.# 5/7 refuse bail where investigation is ongoing or the prosecution demonstrates real risk of interference with the proceedings; he, therefore, opposes the bail application. 9. 9. On perusal of the Notice under Section 47 of BNSS, 2023, it is seen though the Grounds of Arrest and other details are available, no signature of the arrested person, i.e., the signature of the Accused Applicant is not available in the Notice. This fact prima facie indicates that no Notice under Section 47 of BNSS, 2023 was served or issued to the Accused Applicant while arresting him. There is no material found in record to show that the Notice was given to him on a later stage too. The Hon'ble Apex Court in a catena of cases, including the case of Mihir Rajesh Shah (supra) has held that the non-service of Notice under Section 47 BNSS, 2023 to the arrestee is violative of the mandates of provisions of Section 47 BNSS which makes the arrest illegal and thereby, providing an indefeasable right to bail to the arrested person. 10. Though Section 37 of the NDPS Act provides for certain conditions to be fulfilled before granting bail to an arrested person in case of seizure of commercial quantity, the same will be applicable only when the arrest is itself not illegal. However, if any arrest is made in violation of the mandatory provisions as laid down in the BNSS, 2023, then the same goes to the root of the matter and the initial arrest itself becomes illegal. 11. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution of India. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be informed of the grounds Page No.# 6/7 of his arrest at the earliest and should not be detained without informing him of such grounds. 12. In view of the aforesaid, this Court is of the considered opinion that the rigours of Section 37 of the NDPS Act shall not be applicable in a case wherein the initial arrest itself is rendered illegal due to violation of Section 47 of the BNSS, 2023. Therefore, this Court is of the considered opinion that there is a violation of Section 47 of the BNSS, 2023 in the instant case while arresting the accused applicant whereby curtailing the fundamental rights of the Accused Applicant guaranteed under Article 21 and 22 of the Constitution of India without following the due legal process. 13. Having found prima facie violation in the arrest of the Accused Applicant in service of Notice under Section 47 of BNSS, 2023, this Court does not feel any requirement to examine the merits of the argument of the learned counsel for the accused applicant about Section 48 Notice of BNSS, 2023. 14. In view of the aforesaid discussions and findings, this Court directs that the accused applicant to be released forthwith on bail on furnishing of a bail bond of Rs. 50,000/ (Fifty Thousand only) with two sureties of like amount to the satisfaction of the learned Sub-Divisional Judicial Magistrate, Rangia, subject to the following conditions:- (i) that the accused applicant shall appear before the Investigation Officer as and when required; (ii) that the accused applicant 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 Investigating Officer; Page No.# 7/7 (iii) that the accused applicant shall provide his contact details including photocopies of their Aadhar Card or PAN card as well as, mobile numbers, and other contact details before the Sub-Divisional Judicial Magistrate, Rangia; (iv) that the accused applicant shall not leave the jurisdiction of the Sub- Divisional Judicial Magistrate, Rangia, without prior permission of the said Court and when such leave is granted by the said Court, the accused applicant shall submit his addresses and contact details during such leave before the said Court; and (v) that the accused applicant shall not commit any offence while on bail. 12. In view of the aforesaid directions, this bail application stands disposed of, as allowed. JUDGE Comparing Assistant