Page No.# 1/6 GAHC010070582026 2026:GAU-AS:11389 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail (Cancellation)/4/2026 THE STATE OF ASSAM AND ANR REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR, ASSAM 2: ALAKESH DAS S/O KHANINDRA DAS R/O BAREGAON PS SORBHOG DIST BARPETA ASSAM PRESENTLY SERVING AS SI (UB) AMINGAON OUTPOST UNDER NORTH GUWAHATI POLICE STATION KAMRUP ASSAM VERSUS ANOWAR HUSSAIN KAJI AND ANR S/O JUNAB KAJI, R/O KAJI PARA, PAL HAJI, PS BARPETA, DIST BARPETA, ASSAM 2:AMINUL SIKDAR S/O MD SAHED SIKDAR R/O VILLHARIPUR CHOWKPARA PS TARABARI DIST BARPETA ASSA Advocate for the Petitioner : MR. R R KAUSHIK, ADDL PP,ASSAM Advocate for the Respondent : MR. S R ISLAM, MR. B CHOWDHURY Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 12.08.2026 Heard Mr. B.K. Sharma, learned Addl. Public Prosecutor for the petitioners. Also heard Mr. B. Choudhury, learned counsel for the respondents. 2. This is an application filed by the prosecution under Section 483(3) of the BNSS for cancellation of the bail granted to the petitioner vide Order dated 30.03.2026 passed in North Guwahati P.S. Case No. 09 of 2026 by the Learned Special Judge, Kamrup Amingaon. 3. The petitioner No. 1 is the State of Assam represented by Commissioner and Secretary, Home and Political Department, Government of Assam and petitioner No. 2 is the I.O. of the instant case. 4. The respondents were arrested in connection with the aforesaid case on 12.01.2026 and a commercial quantity of heroin was allegedly recovered from them. According to the prosecution, the respondents were repeat offenders with criminal antecedents. 5. On strength of the aforesaid FIR, the arrested accused persons were produced before the learned chief Judicial Magistrate, Kamrup, Amingaon Assam on 13.01.2026 and Forwarding Reports dated 13.01.2026 was also submitted before the Hon'ble Court. Section 47 BNSS and Section 48 BNSS notices were Page No.# 3/6 served. Section 48 notice was received by one Jeherul Sikdar, who was nominated by accused No. 1 /respondent No. 1 herein and is the brother of accused No. 2/ respondent No. 2 herein. 6. On 05.03.2026, a bail petition was preferred by one Jeherul Sikdar on behalf of both the accused which was numbered as Petition No. 1238/26. In the aforesaid bail application, the petitioner therein namely Jeherul Sikdar categorically stated in paragraph No. 1 of the bail petition and in the affidavit of the bail petition that he is the friend of the accused No. 1/respondent No. 1 herein and brother of accused No. 2/respondent No. 2 herein. In the bail application, objection was filed by the Police through the Public Prosecutor. 7. After hearing both the sides, the learned Special Judge, Kamrup, Amingaon had allowed the accused persons to go bail of Rs. 1,00,000/ (Rupees One Lakh) each with two sureties of like amount each, one being government service holder by imposing some conditions on them. 8. The learned Addl. Public Prosecutor has referred to the impugned order wherein it has been observed inter alia as follows:- “However, as far as the compliance of section 48 of the BNS is concerned, on perusal of the said notices it is seen that with regard to the notice issued to Anowar Hussain the recipient of the said notice is one Jehrul Sikdar of Barpeta and as per the endorsement given by the I/O it reveals that he was nominated by the accused and that he had undertaken to transmit the said notice to the Page No.# 4/6 wife of the accused. The same cannot be taken to be due compliance of the provisions of section 48 of the BNS in view of the ratio laid down by the Hon'ble Supreme Court in the case of Vihaan Kumar Vs. State of Haryana & Anr. Therefore, this court is of the considered opinion that with regard to Anowar Hussain the mandate of section 48 of BNS has not been complied with. With regard to section 48 notices issued to the relatives of Aminul Sikdar it is seen that the I/O has made an endorsement that the said notice was served upon Jeherul Sikdar who was the brother of Sahed Sikdar, father of the accused. However, except the said endorsement there is nothing on record that would in any way show that Jeherul Sikdar was related in any way to the accused or his father. That being so the said notice u/s 48 issued to Aminul Sikdar cannot be said to be in compliance to the provisions of section 48 of BNS and not in conformity with the ratio laid down by the Hon'ble Supreme Court in the case of Vihaan Kumar Vs. State of Haryana & Anr. Therefore, this court is of the considered opinion that continued custody of the accused persons Anowar Hussain and Aminul Sikdar will not be proper as it is in violation of article 22(1) of the Constitution.” This Court by Order dated 06.04.2026 had staged the aforesaid order. 9. With reference to the first paragraph of the impugned order cited above herein, despite finding that the recipient of the notice with respect to accused Anowar Hussain Kaji was one Jeherul Sikdar of Barpeta and as per the endorsement given by the I.O. he was the nominated person of the accused on whom the notice was to be served and it was accordingly so served, the learned Court has not assigned any reason as to why the same cannot be taken to be Page No.# 5/6 due compliance of the provisions of Section 48 of the BNSS. The learned Court has referred to the case of Vihaan Kumar v. State of Haryana & Anr. reported in (2025) 5 SCC 799 and held that the action of the I.O. is not in conformity with the ratio laid down therein. However, in Vihaan Kumar (Supra) it has been specifically laid down that the notice under Section 48 BNSS may be served on the nominated person of the arrestee, besides the other categories of persons mentioned therein. Furthermore, with respect to the notice in respect of accused Aminul Sikdar, the same was stated to be served upon the same Jeherul Sikdar, who was the brother of the accused, Aminul Sikdar. 10. The learned Court has held that except the said endorsement, there is nothing on record that would in any way show that Jeherul Sikdar was related in any way to the accused or his father. As pointed out by the learned Addl. Public Prosecutor, the very bail application on behalf of the said accused was filed by the said Jeherul Sikdar, wherein, he described himself as the brother of the accused No. 2 i.e., Aminul Sikdar and friend of accused No. 1 Anowar Hussain Kaji. Therefore, it is apparent that the learned Court erroneously held that there was no material to support the said endorsement of the I.O. 11. From the above, it appears that the impugned order suffers from perversity and therefore, the same cannot be sustained. Page No.# 6/6 12. Accordingly, the said impugned order is set aside. JUDGE Comparing Assistant