Page No.# 1/4 GAHC010187242026 2026:GAU-AS:14015 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2574/2026 SRI SUDHIR KUMAR S/O JAGDISH MAHTO, RESIDENT OF VILLAGE-UPAHARA, P.S.-GOH, DIST.- AURANGABAD, BIHAR, PIN-824203 VERSUS THE STATE OF ASSAM REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. P BORA, A R PAL,MS K BHATTACHARYYA,MR M SAHEWALLA Advocate for the Respondent : PP, ASSAM, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 22.09.2026 Heard Mr. P. Bora, learned Senior Counsel assisted by Ms. M. Sanganeria, learned counsel for the accused and also heard Mr. D.P. Goswami, learned Additional Public Prosecutor, Assam, appearing for the State respondent. 2. This application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by the accused, namely, Sudhir Kumar, who has been languishing in jail hazot since 19.01.2026, in connection with Bongaigaon G.R.P.S. Page No.# 2/4 Case No.06/2026, corresponding to Charge-Sheet No.33/2026, dated 25.06.2026, under Section 20(b)(ii)(c) of the NDPS Act, 1985, corresponding to Special (Nar) Case No.72(BGN)/2026, pending before the Court of learned Special Judge, Bongaigaon, 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 one Pinku Borah, LNK, on 18.01.2026. The essence of allegation, in the FIR, dated 18.01.2026, is that during routine checking operation on 18.01.2026, at about 2:00 p.m., at the Brahmaputra Mail No.15658 DN (Kamakhya Jn. – Delhi Jn.), at Platform No.1 and found one Sudhir Kumar with a trolley bag with 24 packets wrapped in brown tape, of suspected Ganja. 4. Mr. Bora, learned counsel for the accused, submits that the accused is languishing in jail hazot for 240 days and that he is not on the merit, but, on the point of non-compliance of the provision of Section 48 of the BNSS, 2023. Referring to the forwarding report, Annexure-II of the petition, he submits that the Investigating Officer, in the forwarding report has clearly mentioned that the ground of arrest under Section 48 of the BNSS, 2023 was communicated to the family members of the accused by WhatsApp on Mobile No.7488837268, but there is no proof of service of the said notice and that there are several decisions of Hon'ble Supreme Court and also of a Coordinate Bench of this Court in Bail Appln. No.929/2026, dated 13.05.2026 and in Sayed Jashim Ahmed vs. State of Assam, reported in 2025 Supreme(Gau) 1643 that notice served upon the family members through WhatsApp is not sufficient compliance and for non-compliance of the statutory provision, serious prejudice is caused to the accused and therefore, Mr. Bora has contended to allow this application. 5. Per contra, Mr. Goswami, learned Additional P.P. submits that the provision of Section 48 BNSS, 2023 has been complied with by the I.O. and that the case is pending at the stage of evidence and one witness has been examined so far and in Page No.# 3/4 the event of enlarging the accused on bail at this stage, it may cause serious prejudice to the prosecution side and therefore, it is 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 gone through relevant provision of law i.e. Section 48 of BNSS, 2023 and also the forwarding report. 7. Section 47 obligates the arresting authority forthwith inform any relative, friend, or nominated person about the arrest and the place where the arrested person is being held. The arrested person must also be informed of this right. An entry must be made in a station book, and the Magistrate must verify compliance. This corresponds to the old Section 50A Cr.P.C. 8. The basic facts here in this case are not in dispute. The accused was arrested on 19.01.2026, since then he has been languishing in jail hazot for last 240 days. Further, from the forwarding report it appears that notice under Section 48 of the BNSS, 2023 was sent to the family members of the accused by WhatsApp in the mobile No.7488837268. There is no proof of receipt of the said notice by the family members of the accused. 8.1. It is, however, well settled in catena of decisions that service of notice by WhatsApp is not permissible. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Satender Kumar Antil v. Central Bureau of Investigation and Another, reported in 2025 SCC OnLine SC 1322, dated 25.01.2026, especially to paragraph No.11(a), wherein in no uncertain terms it is stated that is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under the Cr.P.C., 1973/BNSS, 2023. In view of the above factual and legal matrix, it cannot be said that the provision of Section 48 of the BNSS, 2023 has been complied with in letter and spirit. Page No.# 4/4 8.2. It is also well settled in the case of Vihaan Kumar v. State of Haryana, reported in 2025 INSC 162, that ground of arrest must also be communicated to the relative, friends in writing. Mere intimation of arrest or listing of penal sections is not enough. The grounds must convey sufficient basic facts/particulars of the accusation in a language the person understands, preferably in writing, so the accused can effectively consult a lawyer and challenge the arrest/remand. Failure here violates Article 22(1) (and often Article 21), vitiates the arrest and subsequent remand, and entitles the accused to bail as a constitutional remedy even where statutory bail restrictions exist. Consequence of failure was also discussed in the case of Prabir Purkayastha v. State (NCT of Delhi), reported in 2024 INSC 414, and it has been held that non-compliance violates Article 22(1). 8.3. Thus, for non-compliance of the aforesaid provision, and without entering into the merit of the matter, this Court is inclined to allow this application. 9. Accordingly, it is provided that on furnishing a bond of Rs.1,00,000/-, with one surety of the like amount to the satisfaction of the learned Special Judge, NDPS, Bongaigaon, the accused, namely, Sudhir Kumar, shall be enlarged on bail, subject however, to the condition that he shall appear before the learned Trial Court on each and every date without fail. 9.1. It is also provided that the learned Special Judge, NDPS, Bongaigaon may also impose any other condition to ensure appearance of the accused before the learned Court during trial. 10. In terms of above, the bail application stands disposed of. Comparing Assistant Sd/- Robin Phukan JUDGE