Page No.# 1/6 GAHC010141732026 2026:GAU-AS:12885 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1967/2026 ROFIKUL ISLAM S/O- KHUDA BOXO ALIAS KHUDA BOKSHO, R/O. NO. 3 TUPAMARI, P.O. TUPAMARI, P.S. NAGARBERA, DISTRICT- KAMRUP, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. A PARAMANIK, P. KALITA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 07-09-2026 Heard Mr. A Paramanik and Mr. D Ullah, the learned counsels for the petitioner. Also heard Mr. R R Kaushik, the learned Additional Public Prosecutor appearing on behalf of the State respondent. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with prayer for bail as the petitioner is behind bars since 22.02.2026 in connection with NDPS Case No. 14/2026 (Arising out of Boko Page No.# 2/6 Police Station Case No. 53/2026), u/s 22 (c) of NDPS Act. 3. It is submitted by Mr. Paramanik that in the present case it is alleged that a commercial quantity of Codeine Phosphate Cough Syrups were recovered from the rented premises of the petitioner and on the basis of which he got arrested on 22.02.2026 and since then he is in custody. He further submitted that basically in the present petition they have raised some legal issues in regards to non-compliance of service of notice u/s 48 BNSS as well as there is total non- compliance of Section 36 of BNSS at the time of issuing the Arrest Memo. It is submitted by Mr. Paramanik that from the Forwarding Report itself it is seen that there was no enclosure of notice u/s 48 BNSS at the time of his production which is required as per law and the Hon’ble Apex Court also in case of of Mihir Rajesh Shah v. State of Maharashtra and Another also specifically stated that the notice is to be served atleast 2 hours prior to the production of the arrestee before the Magistrate for remand. 4. Mr. Ullah, the learned counsel for the petitioner also to that regard submitted that the Arrest Memo was served to the petitioner u/s 36 of BNSS. But, the signature of the accused as well as the relative were not taken at the time of issuing the Arrest Memo u/s 36 BNSS, which is in complete violation of Section 36 BNSS as well as 62 of the BNSS. 5. It is further submitted by Mr. Paramanik that though the notice u/s 48 ware seems to be served on the relative of the accused but, that was not served at the time of production of the accused before the learned Magistrate. Thus, for non-compliance of Sections 36 as well as 48 of BNSS, violates the statutory right of the present petitioner and in that count only the accused is entitled for bail. 6. Mr. Ullah also relied on a decision of the Division Bench of this Court which Page No.# 3/6 was passed on the reference dated 12.08.2026 in Bail Application No. 1239/2026 wherein in para 37 of the said judgment the reference was accordingly answered. In para 37 of the said judgment also held that the compliance of Section 36 BNSS is mandatory and the police officer is bound to follow all the safeguards diligently. However, it is held that failure of compliance of Section 36 alone may not automatically render the arrest void ab initio. But, in the instant case it is not a case that there is not only violation of Section 36 of BNSS but there is violation of even Section 48 of the BNSS and thus the arrest can be considered as void or illegal and in that consideration also the petitioner is entitled for bail. Para 37 of the said judgment read as under:- “37. Avoiding all prolixity, we thus answer the reference as follows: (i) Section 36 of the BNSS is mandatory, and the Police Officers effecting arrest are bound to follow all safeguards diligently; (ii) Failure in complying with the procedural safeguards would constitute a violation of a statutory provision dealing with the liberty of an individual, which may attract appropriate legal consequences; (iii) However, such failure by itself and in isolation does not automatically render the arrest void ab initio or non est; (iv) The Court examining the legality of arrest ought to consider the totality of the circumstances, including – (a) whether the arrest was otherwise authorized by law; (b) whether grounds of arrest were communicated; (c) whether the relatives or friends were informed, as required; (d) whether the arrestee was produced before the Magistrate within prescribed time; and (e) whether prejudice or abuse has resulted from such omission in framing the arrest memo.” 7. Mr. Kaushik, the learned Addl. PP raised objection and submitted that it is a case of commercial quantity wherein considerable amount of Codeine Mixed Cough Syrups was recovered from the rented premises of the present petitioner, Page No.# 4/6 that is from his conscious possession. He further submitted that though the petitioner is repeatedly hammering on the point that there was no service of notice u/s 48 of BNSS but, the records reveals that notice was served to the relative of the present petitioner. He further submitted that the learned Trial Court below while rejecting the prayer for bail has discussed in detail to his satisfaction that only due to non-compliance of Section 36 of BNSS, cannot be the only ground for release of the accused on bail when there is sufficient compliance of Sections 47 & 48 of the BNSS. Apart from that it is submitted by Mr. Kaushik that in case of State of Karnataka v. Sri Darshan reported in (2025) 0 Supreme (SC) 1201 the Hon’ble Apex Court also held that compliance of requirement of Section 47 & 48 BNSS is sufficient unless demonstrable prejudice is shown. But, here in the instant case there is no such prejudice is caused to the present petitioner for consideration his bail application for non-compliance of Section 36 BNSS wherein there is total compliance of Sections 47 & 48 BNSS. 8. Mr. Kaushik further relied on the said judgment of the Division Bench of this Court wherein he basically emphasized on para 37 (iv) wherein the findings of the Court is discussed and from where also it is seen that in para 37(iv) point (a), (b), (c), (d) & (e) is already complied with. 9. Mr. Kaushik further submitted that this is a case of commercial quantity wherein the rigour of Section 37 will also follow and there is no reason to believe that the present accused/petitioner is innocent or will not commit such kind of offence, if he is allowed to go on bail, which are the requirements of Section 37 of NDPS Act. Accordingly, Mr. Kaushik raised vehement objection and submitted that it is not at all a fit case to allow the accused to go on bail at this stage. Page No.# 5/6 10. Hearing the submissions made by learned counsel for both sides, I have also perused the scanned TCR of the learned Magistrate. The learned counsel for the petitioner basically emphasized on non-compliance of Section 36 of BNSS wherein signature of the accused as well as the relative/witness were not taken by the Arresting Officer at the time of issuing Arrest Memo u/s 36 of the BNSS and it is also submitted that in the Forwarding Report there is no mention about the enclosure of notice u/s 48 of BNSS at the time of production of the accused before the learned Magistrate. Thus, it is the case of the petitioner that his arrest is illegal and due to non-compliance of Section 36 as well as Section 48 of BNSS, the statutory rights of the accused under Articles 21 as well as 22 of the Constitution of India have been violated. Further, relying on the judgment of the Division Bench of this Court, which was passed under the reference, it is submitted that the Hon’ble Division Bench of this Court had come to a conclusion that the compliance of Section 36 BNSS is mandatorily required. However, such failure of compliance of Section 36 by itself and in isolation, it is not automatically rendered the arrest void ab initio. But, it is held in para 38 where there is breach of requirement is accompanied by other violations, such as illegal detention or infringement of constitutional right, the Court may declare the arrest illegal and can grant the appropriate relief. The learned counsel for the petitioner accordingly submitted that in the instant case, there is not only the violation of Section 36 BNSS but, in the same time, there is a complete violation of Section 48 of the BNSS, whereby the family members/relatives of the accused were not intimated. But, on perusal of the record it reveals that there is total compliance of Section 47 & 48 of the BNSS and the family members/relatives had already received the notice issued u/s 48 of the BNSS. However, it is a fact that the police officer did not take the signature of the Page No.# 6/6 accused as well as relatives/witnesses in the Arrest Memo complying Section 36 of BNSS. But, as observed by the Division Bench of this Court that only due to non-compliance of Section 36 BNSS itself in isolation does not automatically render the arrest void ab initio. Further, it is seen that no prejudice is caused to the present petitioner only for non-compliance of Section 36 of BNSS as it is an admitted fact that he was immediately informed the grounds of arrest u/s 47 BNSS and the relatives were also informed to that regard. Thus, there was total compliance of Section 47 & 48 of the BNSS and only for not taking signature of the accused and his relative in the Arrest Memo u/s 36 of BNSS, cannot cause any prejudice to the present petitioner. In case of State of Karnataka v. Sri Darshan, reported in (2025) SCC OnLine SC 1072, it has been held that compliance of requirements u/s 47 & 48 of BNSS is sufficient unless demonstrable prejudice is shown. 11. In the present case also it is seen that a commercial quantity of the contraband was alleged to have been recovered from the conscious possession of the accused/petitioner, and he was accordingly served written notice u/s 47 BNSS before his production as well as his family members were also intimated by issuing notice u/s 48 BNSS. The petitioner also failed to produce any reasonable ground to consider that prejudice is caused to the petitioner only due to non-compliance of Section 36 BNSS. Further, there is no material to held that the petitioner is innocent and will not commit similar kind of offence, if he is allowed to go on bail as per the requirement u/s 37 of NDPS Act. 12. With the above observations, the present petition accordingly dismissed and stands disposed of. JUDGE Comparing Assistant