Page No.# 1/7 GAHC010163122026 2026:GAU-AS:11057 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2213/2026 BOBIDUL ISLAM S/O ABDUL ROSHID, R/O VILLAGE - HAZIPARA, P.O. AND P.S HOWLY, DISTRICT BARPETA, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE P.P, ASSAM. Advocate for the Petitioner : MR S M ABDULLAH P, MD R ISLAM,MR. J ALI,MS F HUSSAIN Advocate for the Respondent : PP, ASSAM, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 07.08.2026 Heard Ms. F. Hussain, learned counsel for the accused and also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State respondent. Page No.# 2/7 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by the accused, namely, Bobidul Islam, who has been languishing in jail hazot since 28.07.2026, in connection with Howly P.S. Case No.124/2026, under Section 318/316/61(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 read with Section 66(D) of the I.T. Act, for grant of bail. 3. It is to be noted here that the aforementioned case has been registered on the basis of one FIR lodged by S.I. Bikash Kumar Roy of Howly P.S., on 28.07.2026. The allegation against the present accused in the said FIR dated 28.07.2026, is that he has been operating an account on the Binance online financial platform, since April, 2024 to March, 2025 and during the course of examination of the digital evidence, it has been found that he had received USDT (Tether) cryptocurrency through various transaction IDs, on the said platform, and the digital evidence further disclosed that he had subsequently converted the USDT into Indian currency and withdrawn approximately Rs.45,00,000/-, through various online financial transactions and when questioned about his income, he has failed to produce any valid document and also failed to offer any satisfactory explanation regarding the lawful source of the fund. 4. Ms. Hussain, learned counsel for the accused submits that the arrest of the accused itself is illegal, as the punishment prescribed for the alleged offence is up to 7 years and as such, the Investigating Officer has to record his satisfaction, as required under Section 35(3) BNSS, 2023 for causing arrest of the accused, instead is issuing notice under the said Section. She also submits that in view of the decision of Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273 and subsequently affirmed in the case of Satender Kumar Antil v. CBI and Another, reported in (2022) 10 SCC 51 and in Satender Kumar Antil v. Central Bureau of Investigation and Another, reported in 2026 SCC OnLine SC 162 and since the I.O. has failed to record his satisfaction for not issuing notice under Section 35(3) of the BNSS, the accused is entitled to bail. She further submits that the offence relates to the period from April, 2024 to March, 2025 and she also submits that playing online betting is not Page No.# 3/7 banned and conversion of USDT cryptocurrency to Indian rupees are also not banned and as such, no offence against the accused is made out and therefore, it is contended to allow this application. 5. Per contra, Mr. Borthakur, learned Additional Public Prosecutor, Assam, has vehemently opposed the petition. Taking this Court through the Note of the I.O. in the forwarding report of the accused dated 29.07.2026, Mr. Borthakur submits that in the said forwarding report, the I.O. has recorded the circumstances under which the accused was arrested and why he has not been released on bail after serving notice under Section 35(3) of the BNSS. Mr. Borthakur further submits that the evidence was in electronic mode and it could have been destroyed if he was not arrested immediately after detention of the evidence and as such, no illegality is committed by the I.O. Further, he submits that the allegations are serious in nature and the investigation is going and if the accused is enlarged on bail at this stage, it will cause serious prejudice to the investigating agency and therefore, he has contended to dismiss the petition. 6. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the forwarding report dated 29.07.2026. 7. Notably, in the case of Arnesh Kumar (supra), Hon'ble Supreme Court, has emphasized in paragraphs 7.1., 7.2. and 7.3. of the said decision, regarding the requirement of recording satisfaction by the Investigating Officer before effecting arrest, in cases where punishment is seven years and the same is extracted herein below:- “7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the Page No.# 4/7 offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” 9. …………….. ……………… The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” 8. The proposition laid down in the case of Satender Kumar Antil (supra) (I) was subsequently affirmed in the second case of Satender Kumar Antil (supra) (II) and following directions were issued:- Page No.# 5/7 “33. On the basis of the interpretation given by us, we conclude as follows: a. An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and, therefore, shall not be termed as mandatory. b. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. c. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence. d. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule. e. Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted. f. Power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception, and the police officer is expected to be circumspect and slow in exercising the said power.” 9. In the instant case, while not releasing the accused after issuing notice under Section 35(3) of the BNSS, 2023, the I.O. has recorded a note, which is extracted herein below:- “Note: Due to the nature of the offence there was a high likelihood that the accused persons might abscond and/or destroy crucial electronic evidence if served with notice u/s 35(3) BNSS prior to apprehension. Further, the accused persons were found actively engaged in the commission of cognizable offences at the spot, necessitating immediate apprehension to prevent continuation of the illegal activity. Serving notice at that stage would have hampered effective investigation and enforcement action. Hence, in the interest of a fair and effective investigation, Notice u/s 35(3) BNSS could not be served at the time.” 10. Though, Mr. Borthakur submits that by giving the Note, the I.O. had complied with Page No.# 6/7 the direction of Hon'ble Supreme Court in the case of Arnesh Kumar (supra) in paragraphs 7.1., 7.2. and 7.3., yet, the submission of Mr. Borthakur left this Court unimpressed. 11. Perusal of the Section 35 of BNSS indicates that when the investigating agency has decides that the conditions under Section 35(1)(b) are satisfied (so notice under 35(3) is not required and arrest will be effected, he has to record reasons in writing . He has to mention the followings:- (I) The specific material forming the “reason to believe” under Section 35(1)(b)(i) that the person committed the offence. (ii) The specific ground(s) under Section 35(1)(b)(ii) on which the officer is satisfied that arrest is necessary (cite the relevant clause(s) (a)–(e) and the facts supporting it). (iii) Reasons must show application of mind—they cannot be vague, stereotyped, or a mere reproduction of the statutory language. (iv) That the decision to arrest (instead of issuing notice) was taken after considering the facts of the case. 12. What can be crystalised from aforesaid discussion is that the satisfaction has to be recorded specifically addressing the “reason to believe” coupled with the applicable necessity ground(s) under Section 35(1)(b), explaining why arrest is required and why notice under Section 35(3) is not being issued and these appears to be mandatory in nature and failure to compliance will render the arrest illegal. 13. Coming to the facts herein this case, it appears that the I.O. had recorded a Note in the forwarding report of the accused. And having examined the Note of the I.O., as extracted herein above, for effecting arrest of the accused herein, in the light of the proposition laid down by Hon'ble Supreme Court in the cases of Arnesh Kumar (supra) and Satender Kumar Antil (supra), this Court is unable derive satisfaction in respect of the compliance of the proposition laid down in the aforementioned cases by the I.O., Page No.# 7/7 and the same appears to be not substantial compliance of the provision of Section 35(3) BNSS, 2023. 14. It appears that the I.O. has not recorded his satisfaction and also not recorded the facts in arriving at the conclusion for causing arrest, as required under Section 35(5) BNSS. Though he has given some reasons, the same appears to be not conformed to the requirement as no facts in arriving at the satisfaction is recorded, as mandated in paragraphs 7.1., and 7.2., of the decision of Arnesh Kumar (supra). This failure to record facts and satisfaction furnishes a strong ground for bail. 15. Under the given facts and circumstances, this Court is inclined to allow this application. It is provided that on furnishing a bond of ` 25,000/- with one surety of like amount to the satisfaction of the learned C.J.M., Barpeta, the accused, namely, Bobidul Islam, shall be enlarged on bail. 16. In terms of above, this bail application stands disposed of. 17. Case diary be returned. JUDGE Comparing Assistant