Page No.# 1/9 GAHC010095552026 2026:GAU-AS:7299 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1273/2026 MASUD ZINNUL AHMED SON OF MIZANUR RAHMAN, RESIDENT OF VILLAGE P.O.- BANGHUGI, P.S.- KALGACHIA, DISTRICT- BARPETA, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM. Advocate for the Petitioner : MR. A CHAUDHURY, MR. I HUSSAIN,MR N JAMAL,MR A K AZAD,MR. N MAHAJAN,G UDDIN Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA O R D E R Date : 26.05.2026. Heard Mr. B. Mahajan, the learned counsel for the petitioner. Also heard Mr. B Sharma, the learned Addl. PP appearing on behalf of State respondent. 2. This is an application under Section 483 of the BNSS, 2023 with prayer for bail to the accused petitioner, namely, Masud Zinnul Ahmed who is behind the bar since 08.05.2026, in connection with Kalgachia P.S. Case No. 46/2026 under Page No.# 2/9 Sections 61(2)/318(4)/319(2)/316(2)/3(5) of the BNS, 2023. 3. The case diary is received and perused the same. 4. Mr. Mahajan, the learned counsel for the accused petitioner basically emphasized on the point of non-issuance of notice under Section 35(3) of the BNSS, 2023, prior to the arrest which is mandatorily required. He further submitted that as per Section 35(3) of the BNSS, corresponding to Section 41/41A of the CrPC, the Police Officer is required to issue notice directing the person against whom any reasonable complaint has been made or there is any reasonable suspicion for committing any cognizable offence to appear before the I.O. on such other place or as may be specified in the notice. However, a Police Officer can arrest a person without an order from the Magistrate or without a warrant of arrest but in that case also, the conditions which are stated in Section 35(1)(b)(ii)(a), (b), (c), (d) and (e) are to be satisfied, if any person is arrested without issuing notice wherein the offence is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years, with or without fine. But here in the instant case, it is prima facie it reveals that there is no such satisfaction of the Police Officer recorded while arresting the accused or while forwarded the accused before the Magistrate concerned seeking police remand. In the forwarding report itself, those five ingredients have not been mentioned by the Police Officer to his satisfaction as to why the arrest of the present accused petitioner had to be made without issuing notice under Section 35(3) of the BNSS. He accordingly submitted that while arresting the accused petitioner, the arresting authority had violated the guidelines formulated by the Hon’ble Apex Court in the case of Arnesh Kumar Page No.# 3/9 vs. State of Bihar reported in (2014) 8 SCC 273 as well as the guidelines as per the order passed in Satender Kumar Antil vs. Central Bureau of Investigation, reported in (2022) 10 SCC 51. 5. Mr. Mahajan, the learned counsel for the accused petitioner accordingly emphasized on para 11.2, 11.3, 11.4 and 11.8 in the case of Satender Kumar Antil (Supra), which read as under: “11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. ………………………. 11.6. ………………………. 11.7. ………………………. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” 6. Mr. Mahajan, the learned counsel further submitted that in the recent judgment in the case of Satender Kumar Antil vs. Central Bureau of Investigation, reported in (2026) SCC OnLine 162 also in para 33 (d), the guideline issued that “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”. But in spite of such direction of the Hon’ble Apex Court, the I.O. did not issue the notice Under Section 35(3) of the BNSS and without mention about the satisfaction of the I.O., the accused was Page No.# 4/9 forwarded before the learned Magistrate with a prayer for police remand. 7. He further submitted that the learned Addl. CJM, Barpeta while passing the order of police remand on the day of production i.e. on 08.05.2026 also observed that at the time of praying for police remand, the I.O. has sought police custody for the accused for a period of 10 (ten) days, without making allegation relating to cyber fraud and the I.O. also failed to place before the Court any prima facie material regarding the contents or date allegedly stored in seized laptops or mobile handsets. It is also observed that no report or extraction memo, digital evidence or analysis relating to date contained in the seized electronic devices were produced at the time of production of the accused. Apart from that, it is also observed that there is no statement or communications from any Bank relating to the seized debit/credit cards has been produced, so as to prima facie establish the fraudulent transactions or illegal financial activities of the accused. 8. Accordingly, Mr. Mahajan, the learned counsel submitted that the I.O. could not produce any prima facie material before the learned Magistrate at the time of his arrest or at the time while the prayer for police remade was made. He further submitted that in the law of India, there is no provision for subsequent investigation, after the arrest of a person. Before arresting a person, a preliminary investigation has to be made by the arresting authority to his satisfaction for arrest of any person. He further submitted that in the present case, there is no statement of any victim nor there is any material as to how the present accused petitioner is related in any cyber crime or defalcated money from the account of any victim. The seizure of some materials or bank accounts from the possession of the accused cannot be the sole ground to arrest a Page No.# 5/9 person or to implicate him in any such kind of cyber crime. 9. Mr. Mahajan further submitted that the coordinate Bench of this Court also granted bail to an accused/petitioner considering non compliance of Section 35(3) of the BNSS and also considering non-existence of conditions mentioned in Clause (a) to (e) of Section 35(1)(b)(ii) of the BNSS. He further submitted that in the above referred order, passed by the learned coordinate Bench of this Court, in Bail Application No.2768/2025, there was at least some mention about the ground for non-issuance of Section 35(3) of the BNSS but here in the instant case, there is no mention at all about the non-compliance of the Section 35(3) Notice in the forwarding report. Accordingly, it is submitted by Mr. Mahajan, the learned counsel that the accused petitioner is entitled for bail due to non- compliance of the notice under Section 35(3) of the BNSS as well as non- existence of any prima facie materials for arrest of the present accused petitioner or to incriminate him in the present case. However, the petitioner is still ready and willing to cooperate with the investigation of the case, if he is provided with the privilege of bail. 10. Mr. B. Sarma, learned Addl. P.P., Assam appearing for the State raised vehement objection and submitted that as per Section 35(1)(b)(ii) of the BNSS, it is necessary of the Police Officer to record while making such arrest in writing and if under the circumstances as mentioned in Section 35(1)(b)(ii) of the BNSS, the arrest is to be made. He further submitted that from the forwarding report itself, it is seen that the reasons of arrest has been categorically mentioned in the forwarding report, wherein it is stated that the arrest was necessary to prevent such person from committing any cyber fraud and also to prevent such person from causing the evidence of the offence to disappear or Page No.# 6/9 tampering with such evidence in any manner and it is also stated that to prevent the person from making any inducement, threat or promise to any person with the facts of the case so as to dissuade him from disclosing such fact to the Court or to the Police Officer, which is required as per Section 35(1)(b)(ii) of the BNSS. 11. Thus, it is not a case that the reasons for arrest was not mentioned. Apart from that, the grounds of arrest are also mentioned in detail as to why the accused petitioner has to be arrested and for what reason the prayer for police remand was also made before the learned Magistrate at the time of his production. Thus, sufficient reasons have been brought for non-issuance of notice under Section 35(3) of the BNSS. He further submitted that, in regard to the merit, there are sufficient materials collected so far by the I.O. and from the possession of the present accused petitioner, already 74 numbers of debit/credit cards, 84 numbers of mobile handsets along with cash amount of Rs. 50 lacs were recovered from his house. The digital analysis of those debit/credit cards are still going on and the mobile handsets are send before the FSL for expert opinion and during investigation, it is also revealed that the petitioner is also engaged himself in online betting and there is a well organized gang for the same. Thus, he submitted that there are sufficient incriminating materials collected by the I.O. and the case is still under investigation. Till date, the report from the FSL expert is still awaited though some bank transactions and call details etc. were recovered during the investigation. 12. Mr. Sarma, the learned Addl. P.P., Assam submitted that from one co- accused namely Raju Ahmed also around 74 numbers of credit/debit cards were recovered but said Raju Ahmed is still absconding. He further submitted that Page No.# 7/9 while passing the order of police remand dated 08.05.2026, the learned Court below also recorded his satisfaction as to how the I.O. on receiving some information, made search and seizure and large numbers of electronic gadgets including mobile handsets, laptops and several debit/credit cards of different banks were recovered and seized and considering the nature, quantity and circumstances of seized materials, the Court recording his satisfaction, allowed the prayer for police remand. Mr. Sarma, accordingly raised vehement objection that there is every probability of hampering or tampering with the investigation of this case as well as there is every probability of disappearing of some digital evidence, if the accused petitioner is released on bail at this stage, as the case is still under investigation and the report of the FSL expert is still awaited. That apart, it is seen that in a given circumstances, it was necessary for the arrest of the accused petitioner without any issuance of notice under Section 35(3) of the BNSS and accordingly, prayed for rejection of the present bail petition. 13. Hearing the submissions made by the learned counsels for both sides, I have also perused the case diary. 14. It is seen that the FIR was lodged on the basis of a reliable information that the present accused petitioner has allegedly been operating a nexus involving cyber crime activities in and around the Kalgachia area along with his associates. On the basis of the said information, the police team from Kalgachia Police Station conducted search in the residence/premises of the accused and during the house search, several digital device such as mobile handsets, laptops, bank accounts, credit/debit cards etc. were seized. From the note of the I.O., it is also seen that the immediate arrest of the accused petitioner was necessary and giving the note in the case diary, the accused had to be arrested Page No.# 8/9 by issuing notice under Section 47 and 48 of the BNSS, as there was reasonable ground to believe that if the accused is served with a notice he may tamper with the digital evidence as well as may help the other accused to abscond, as those digital devices and other debit/credit cards etc. could be seized from the house of the accused petitioner, which would not have been possible if any notice would have issued under Section 35(3) of the BNSS to the accused petitioner. Accordingly, in the note of the I.O. as well as in the forwarding report also, the reasons for immediate arrest is mentioned by the I.O. and there was every possibility of causing the evidence of the offence to disappear or tampering with by the accused and also there is a chance of inducement or threat to the person acquainted with the facts from disclosing the same to the Court. Though it is a fact that there was no extra note of satisfaction of the I.O. but the reasons for arrest vis-à-vis the ground for arrest satisfied the requirement of non-issuance of notice under Section 35(3) of the BNSS, as per provision of Section 35(1)(b) (ii) of the BNSS. 15. Thus, it cannot be held that there is no mention of reasons for non- compliance of Section 35(3) of the BNSS, before the arrest of the accused person or at the time of forwarding him before the learned Trial Court. 16. In para 33(e) of the recent decision of the Hon’ble Supreme Court in the case of Satender Kumar Antil (Supra), as referred above, it is held that “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”. Thus the Apex Court made an observation that in such a circumstance, where the arrest is absolutely warranted, the person can be arrested without issuing the notice under Section Page No.# 9/9 35(3) of the BNSS. 17. In the instant case also, considering the nature of offence, the seizure of all the digital devices and the bank accounts as well as debit/credit cards, etc., it is seen that immediate arrest of the accused petitioner was warranted and accordingly, giving note or satisfaction by the I.O., the arrest was made immediately for the reasons as mentioned above, which was immediately communicated to the accused petitioner by issuance of notice under Section 47/48 of the BNSS. Further, the probability of hampering or tampering with the evidence and the probability of destroying some digital evidence also cannot be denied at this stage, if the accused petitioner is released on bail and thus probability of hampering with the investigation cannot out rightly be rejected at this stage. 18. The case is still under investigation and considering the nature and gravity of the offence, this Court is of the opinion that further custodial interrogation may be required to unearth some more facts of the case as well as to nab the other culprits, who are associated with the said offence. 19. In view of this and also considering the serious nature of the allegation brought against the present accused petitioner, this Court is of the opinion that the accused petitioner is not entitled to bail at this stage and accordingly, the same is rejected and disposed of. JUDGE Comparing Assistant