Page No.# 1/8 GAHC010120782026 2026:GAU-AS:12375 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1618/2026 KUTUB ALI AND ANR S/O- LATE SAHEB ALI, R/O- HALIGAON, DIST- KAMRUP, ASSAM 2: RAJIB AHMED S/O- MATLEB ALI R/O- DAMPUR HAJO DIST- KAMRUP ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. M BISWAS, J SINGPHO,A SAIKIA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER 27.08. 2026 Heard Mr. M. Biswas, learned counsel appearing for the petitioners. Also heard Mr. M.P. Goswami, learned Addl. P.P. for the State of Assam. Page No.# 2/8 2. This is an application under Section 483 of the BNSS, 2023 for grant of bail to the petitioners, namely, 1. Kutub Ali and 2. Rajib Ahmed are aged about 26 and 22 years, respectively, in connection with NDPS Act/ 508/ 2025 corresponding to Azara P. S. Case No. 147/2025 under Section 22 (c) and 29 of the NDPS Act, 1985, pending trial before the learned Special Judge, NDPS Court Kamrup, Assam. The petitioners had been arrested on 16.10.2025 and have been in custody since then. 3. Mr. M. Biswas, learned counsel appearing for the petitioners had referred to the additional affidavit, filed on 26.08.2026 to bring on record the notice under Section 50 of the NDPS Act issued to the petitioners, to assert that the aforesaid notice did not reflect that the petitioners herein had either agreed to be searched only in front of the nearest Gazetted Officer or Magistrate or had agreed to be searched under Section 100 of the Cr.P.C., 1973 without requiring the presence of a Gazetted Officer or Magistrate. 4. The learned counsel has submitted that in the absence of compliance of the mandates under Section 50 of the NDPS Act by not informing the petitioners regarding their legal rights to refuse a body search in the absence of a Gazetted Officer or a Magistrate, the body search of the petitioners would be rendered illegal and, therefore, the consequential arrest, despite alleged recovery of suspected contraband from the vehicles being used by the petitioners, would entitle the petitioners to the privilege of bail. Page No.# 3/8 5. The learned counsel has thereafter drawn my attention to the deposition of PW-1 and PW-2, who were the seizure witnesses, to indicate that none of the witnesses had confirmed that the petitioners herein had been informed about their rights to have a body search made in front of the Gazetted Officer or the Magistrate and in their absence, to refuse a body search. 6. The learned counsel for the petitioner has then drawn my attention to the forwarding report wherein it had been quoted as follows: “Then, following the NDPS procedure, the informant gave notice under Section 50 of the NDPS Act to each suspected person to search their body and vehicles in front of independent witnesses. During the search, we found two numbers of wooden-coloured hard papers suspected cartons from the dicky of the Hyundai Venue vehicle…………….. “ 7. He has submitted that the aforesaid statement would reveal that the body search of the petitioners had taken place and in view of the defects pointed out in the notice under Section 50 of the NDPS Act, the petitioners, to say the least, would be entitled to the privilege of bail during the trial. 8. The learned counsel for the petitioners has also submitted that, keeping in view the young age of the petitioners and the prolonged incarceration and the fact that the similarly situated co-accused had been granted the privilege of bail, this Court would also consider the grant of the privilege to the petitioners Page No.# 4/8 herein. 9. The learned Addl. P.P, resisting the prayer for bail, has submitted that the provisions of Section 50 of the NDPS Act would come into play only in case of personal search of the accused and not when the dicky of the vehicle in which they were travelling was searched. 10. The learned Addl. P.P referred to the judgment rendered in the case of State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172 where the Apex Court had held that the question regarding the observation of the safe guards provided in Section 50 of the NDPS, Act would have to be determined by the Court on the basis of evidence led at the Trial and a finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the Trial that the provisions of Section 50, and more particularly the safeguards provided in the said provision, were complied with, it would not be advisable to cut short a criminal trial. 11. He has thereafter placed reliance on paragraph 57 of the judgment to stress that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of evidence at trial and not at the stage of considering the bail petition of the petitioner. The learned APP has thereafter drawn attention to paragraph 58 of the aforesaid judgment where the Apex Court had held that the conclusions made at Page No.# 5/8 paragraph 57 were not a summary of the judgment and had to be read and considered in the light of the entire discussion contained in the earlier part of the judgment. He then drew the attention of this Court to the contents of paragraph 25 of the judgment where it had been clearly held that it is not necessary to give the information under Section 50 of the NDPS Act to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and, as far as available, in the presence of some independent and respectable persons witnessing this arrest and search. It is only at the trial that the prosecution must establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a magistrate or a gazetted officer at the time of the intended search. He has therefore submitted that the issue as to whether or not the empowered officer had followed the provisions of Section 50 of the NDPS Act is not a matter to be decided at the stage of bail. Therefore, the issues raised by the petitioner regarding non-compliance of Section 50 of the NDPS Act do not require consideration by this Court at this stage. 12. He has further submitted that the case records do not reflect that any body search had been conducted on the petitioners herein and, therefore, the reference to the notices which were issued, probably as a matter of abundant caution, would not in any manner affect the arrest of the petitioners herein. He Page No.# 6/8 has submitted that there is no sufficient cause for this Court to believe that the petitioners would be entitled to privilege of bail, in view of the embargo laid down by Section 37 of the NDPS Act. 13. I have considered the submissions made at the bar, and I have gone through the records placed before this Court. On a reading of the FIR and the forwarding report, I do not find any indication to the effect that the arresting authority had, prior to the arrest or recovery of the contraband items, subjected the petitioners to a body search. The assertion in the records is with regard to the search of the dicky of the vehicle and the recovery of suspected contraband from the same and not to a body search of the petitioners. 14. In view of the observations made by the learned Apex Court that the issue regarding compliance or otherwise of the mandate of Section 50 of the NDPS to be left to be decided at the stage of trial, I do not find any reason to presume that the petitioners had been subjected to a body search. I hasten to clarify that this observation shall not in any manner affect the trial of the petitioners. Whether or not a body search had been conducted is left to be determined at the Trial. 15. Since, prima facie, I am of the opinion that there are no contemporaneous records to indicate that the alleged body search had been conducted, I do not find any force in the arguments of the learned counsel for the petitioners that the consequential arrest of the petitioners on recovery of contraband items from Page No.# 7/8 the boot of their vehicles would be vitiated and that the petitioners would be entitled to bail on such ground. 16. However, I have noticed that the petitioners are aged about 26 and 23 years respectively and it is not the assertion of the prosecution that they are involved in any offence of similar nature in the past or that there is a possibility of the petitioners being engaged in similar activities again, if released on bail. In the earlier order passed by this Court in B.A. No. 1039/ 2026 arising out of the same incident, this Court has also considered that whether the amount recovered would be of commercial quantity remains a matter of trial. 17. In view of the young age of the petitioners, the absence of any allegations of past misconduct of similar nature, the assurance given that no offence of similar nature would be committed in the future, and also keeping in view the length of detention and the stage of trial, I do not see any reason to deny the petitioners the privilege that had granted to the co-accused in B.A. No. 1039/2026. 18. Accordingly, the petitioners may be released on bail on furnishing bail bond of Rs. 50,000/- with two local sureties of the like amount, one of whom shall have landed property within the jurisdiction of the learned Trial Court, to the satisfaction of the learned Trial Court. The learned Trial Court shall be entitled to impose such other conditions as may be deemed necessary to ensure the participation of the petitioners in the further trial proceedings. Page No.# 8/8 19. It is further directed that in the absence of the petitioners on the dates fixed in the trial, without sufficient accused being shown and the said cause being accepted by the learned Trial Court, the bail granted today would be at the risk of being recalled/cancelled. 20. Bail Application accordingly disposed of. JUDGE Comparing Assistant