Page No.# 1/7 GAHC020003132026 2026:GAU-NL:266 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Bail Appln./7/2026 SHRI ZHETOVI S/O SH. LUZHEXU R/O VILLAGE - O RONI OLD VILLAGE, WOKHA, NAGALAND VERSUS THE STATE OF NAGALAND REPRESENTED BY THE PUBLIC PROSECUTOR, NAGALAND Advocate for the Petitioner : S BORGOHAIN, ZULUMEREN M JAMIR,WATITEMJEN JAMIR,,TONGPOK Advocate for the Respondent : P.P, NAGALAND, BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER O R D E R 18.05.2026 Heard learned counsel for the applicant, Mr. S. Borgohain. Also heard learned Public Prosecutor, Mr. Veto V. Zhimomi for the State respondent. 2. The instant bail application has been filed by the applicant under Page No.# 2/7 Section 483 of the BNSS praying for his release in connection with GR Case No. 0069/2026 under Section 25(1B)(a) and 25(1C) of the Arms Act, 1920. 3. It is the case of the applicant that he was arrested on 07.04.2026 at 0830Hrs and he has been in custody since then. As of today he has been in custody for 44 (forty-four) days. 4. The learned counsel for the applicant, by taking the Court to the FIR dated 07.04.2026, submits that it is clearly shown in the FIR that the search in the house of the applicant was carried out at 3.00 AM in the morning and he was not at home when the search was conducted. It is stated that the applicant had been away at his village at the time when the search was conducted. Learned counsel for the applicant has also submitted that the Arrest Memo clearly indicates that the applicant was arrested on 07.04.2026 at 0830Hrs and the Check-list which has been provided to the applicant/accused, in terms of Section 35, BNSS shows that notice was served on him on 07.04.2026 at 0830Hrs, i.e., at the exact time when he was arrested. 5. By relying on the case of Satender Kumar Antil Versus Central Bureau of Investigation and Another reported in 2026 SCC OnLine SC 162, the learned counsel has submitted that for affecting an arrest in an offence punishable with imprisonment up to 7 years, the notice under Section 35 of the BNSS along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS must be in existence. The Hon’ble Supreme Court also stated that even if the circumstances warranting an arrest of the Page No.# 3/7 person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, the arrest shall not be undertaken unless it is absolutely warranted. Therefore, he has submitted that by serving the Section 35 BNSS Notice on the same date and time as the arrest of the applicant, the requirement of the notice under Section 35, BNSS has not been complied with by the arresting authority in letter and spirit. 6. Another ground which the learned counsel for the applicant has taken is that the requirements and provisions of Section 185 of the BNSS regarding search by the police officer has not been complied with by the investigating agency in light of the law laid down in State of Rajasthan Versus Rehman reported in 1959 SCC OnLine SC 58. By relying on the aforementioned judgment, the learned counsel for the applicant states that the power of search is incidental to the conduct of the investigation the police officer is authorized by law to make. Under Section 165 of the CrPC/185 BNSS, four conditions are imposed:- i. The police officer must have reasonable ground for believing that anything necessary for the purposes of an investigation of an offence cannot, in his opinion, be obtained otherwise than by making a search, without undue delay; ii. He should record in writing the ground of his belief and specify in such writing as far as possible the things for which the search is to be made; iii. He must conduct the search, if practicable, in person; and Page No.# 4/7 iv. If it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search after specifying in writing the reasons for not himself making the search and shall authorize a subordinate officer to make the search after specifying in writing the place to be searched, and, so far as possible, the thing for which search is to be made. The learned counsel for the applicant, therefore, submits that requirements of Section 165 of the CrPC/185, BNSS has not been complied with by the investigating agency during the search procedure. On this ground also, the search of the applicant’s house and his subsequent arrest is illegal and, therefore, he deserves to be released on bail. 7. Another ground which the learned counsel for the applicant has taken is that in the Arrest Memo, under paragraph-12, the arresting authority has stated that the applicant is neither dangerous, nor armed, nor a known criminal, nor has previously escaped any bail and he has not operated with accomplices. Therefore, the investigating authority themselves have shown that the applicant has no criminal antecedents and is not associated with any antisocial elements. 8. In view of the following submissions, the learned counsel for the appellant prays that the petititoner/accused may be released on bail at this stage. 9. Per contra, the learned Public Prosecutor, by relying on the Case Diary has noted the entries made on 08.04.2026 and 30.04.2026. He has Page No.# 5/7 submitted that in the Case Diary on 08.04.2026, the statement of the accused/applicant has been recorded, wherein it is stated that the accused himself has disclosed that his younger brother, namely Khekato Wotsa, is an underground worker and resides in Dimapur. He stated that he had no knowledge whatsoever regarding the two pistols and live ammunition allegedly recovered from his residence and asserted that the same has been kept there without his knowledge by his brother. Learned Public Prosecutor has also referred to the entry made in the Case Diary on 30.04.2026 wherein it is stated that efforts are being made and different sources are engaged and contacted to identify and apprehend the absconding accused namely, Mr. Khekato Wotsa but the efforts have been unsuccessful. Learned Public Prosecutor states that the results of the expert opinion regarding the seized arms are still awaited. In view of such grounds, learned Public Prosecutor submits that the investigation is still ongoing and the co-accused is yet to be apprehended and the expert opinion is still awaited and, therefore, the applicant may not be released at this stage. 10. The Court has considered the submissions of the learned counsel for the parties and perused the records as well as the Case Diary and also the authorities relied upon by the learned counsel for the applicant. It is not disputed that the applicant was arrested on 07.04.2026 at 0830Hrs. It is also an admitted fact that he has been in custody now for 44 (forty-four) days. Since the offence with which the applicant is charged carries punishment of up to 7 years imprisonment, the mandatory period of investigation in such case is 60 days. This Court has also seen that the date and time of arrest of the applicant/accused coincides with the date Page No.# 6/7 and time on which the notice under Section 35, BNSS was issued. By doing so the mandate of Section 35, BNSS has not been complied with in letter and spirit by the arresting authority. This Court has also taken note of the fact that after receiving the information about the search of his house, the applicant himself had voluntarily appeared before the East Police Station on 07.04.2026. Therefore, it cannot be said that the applicant is a flight-risk or that he will abscond during the investigation as he is a permanent resident of Dimapur, Nagaland. 11. In view of the findings above, the application is allowed and the applicant is allowed to go on bail under the following conditions: I. Execution of bail bond of ₹50,000/- (Rupees Fifty thousand only) with one local surety of like amount, who shall be a government employee, to the satisfaction of the learned Chief Judicial Magistrate, Dimapur. II. The applicant shall continue to cooperate with the investigation and appear before the Investigating Officer as and when summoned, without fail. III. The applicant shall not interfere with the investigation in any manner and shall not try to influence any of the witnesses directly or indirectly. IV. The applicant shall not leave the jurisdiction of the trial court without permission. Page No.# 7/7 12. Application stands allowed and disposed. JUDGE Comparing Assistant