Page No.# 1/5 GAHC010066122026 2026:GAU-AS:7203 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./948/2026 NUR JAMAL AND ANR S/O NURUL HOQUE R/O VILL- TITAPANI, P.S. KALGACHIA DIST. BARPETA, ASSAM 2: RAJU AHMED S/O SAMSUL HOQUE R/O VILL- BANBAHAR P.S. KALGACHIA DIST. KALGACHIA ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, H CHAKRABORTY,MR. T DEWAN,MR S DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 25-05-2026 Heard learned Senior Counsel Mr. H.R.A. Choudhury for the petitioners, 1) Nur Jamal and 2) Raju Ahmed, who have filed this application under Section Page No.# 2/5 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with prayer for bail as they are behind bars since 02.01.2026 in connection with Bazaricherra Police Station Case No. 01/2026, corresponding to G.R. No. 10/2026 under Sections 22(c)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. It is submitted that the petitioners are not responsible for the contraband found in the truck. The petitioner No. 1 was the driver of the truck and the petitioner No. 2 was the helper. It is further submitted that this case suffers from violation of Sections 36 of the BNSS, 2023 as well as Section 48 of the BNSS, 2023. The arrest memo under Section 36 of the BNSS, 2023, marked as Annexure-4 and 5 of the petition, clearly reveals that no signature of the witness is attached. It is further submitted that the petitioners were not aware that the truck was loaded with cough syrup bottles as the cough syrup bottes were kept hidden under the fruits which the petitioners were carrying to the destination. 3. The petitioners have relied on the decision of the Coordinate Bench of this Court in S Seikholun Vaiphei and Anr Versus the State of Assam in connection with Bail Application No. 3712/2025 wherein vide order dated 17.12.2025, it was held that :- “16. In view of the ratio laid down by the Hon’ble Apex Court in the case of D. K. Basu (Supra) as well as the procedural mandates laid down under Section 36 of the BNSS, 2023, this Court is of the considered opinion that there is a violation of Section 36 of the BNSS, 2023 in the instant case while arresting the accused applicants whereby curtailing their fundamental rights guarranted under Article 21 and 22 of the Constitution of India.” 4. Per contra, learned Additional Public Prosecutor Mr. R.J. Baruah laid stress Page No.# 3/5 in his argument that the Coordinate Bench of this Court has held in Aminur Islam and Anr Versus The State of Assam in connection with Bail Appln./4068/2025 wherein vide order dated 20.01.2026 it was held that :- “14. In the case of State Of Karnataka vs Sri Darshan Etc. reported in 2025 SCC OnLine SC 1702, it has been observed that the compliance of the requirement under Sections 47 & 48 of the BNSS, 2023 is sufficient unless demonstrable prejudice is shown. Accordingly, it is seen that no prejudice has been caused to the present accused petitioners only because of non-obtaining the signature of family members or relatives of the accused petitioners, complying under Section 36(b) of the BNSS, 2023, wherein there are sufficient compliance of Sections 47 & 48 of the BNSS, 2023, whereby family members or relatives of the accused petitioners were duly intimated regarding their arrest.” 5. Learned Additional Public Prosecutor Mr. R.J. Baruah has drawn the attention of this Court to the notice under Section 48 of the BNSS, 2023. It is submitted that both the petitioners are from Barpeta and they were caught red handed, carrying contraband in a truck under the jurisdiction of Bazaricherra, which is 500 km from the district of Barpeta and it is not possible to obtain the signatures of the relatives of the petitioners on the same day. However, Section 47 of the BNSS, 2023, has been strictly complied with and Section 48 of the BNSS, 2023 has also been complied with. 6. Learned Additional Public Prosecutor has also laid stress in his argument that the grounds of arrest under Section 48 of the BNSS have been clearly explained under Section 48 of the BNSS, 2023, and the notice of information clearly reveals that the notices were sent to the relatives of the petitioners through WT message. The arrest memo under Section 36 of the BNSS, 2023, also clearly reflects that notices have been sent to the witnesses through WT Page No.# 4/5 message. 7. I have considered the submissions at the bar with circumspection. I have also scrutinized the Case Diary. 8. Article 21 and 22(1) of the Constitution of India has been violated. It is true that the petitioners’ relatives reside at a distance of 500 kms, but during the investigation, the signatures could have been obtained with responsibility by the Investigating Agencies. It cannot be ruled out that the petitioners were caught red handed transporting 288.337 kgs of Eskuf Cough Syrup. 9. I have also noticed the WT message sent to the O/C Kalgachia Police Station under Barpeta district to inform the family members of the petitioners, which is enclosed in the Case Diary. The I.O’s note on entry of the Case Diary also reveals that pursuant to Section 48 of the BNSS, 2023, a WT message was dispatched to their respective Home Police Station with a request to formally intimate their family, but no receipt or acknowledgement is in the Case Diary. 10. Investigating Agencies could have obtained signatures of other witnesses present in the locality in order to comply with the provisions of Section 36 of the BNSS, 2023. However, the Investigating Agencies failed to obtain the signatures of witnesses in compliance of the provisions of Section 36 of the BNSS, 2023. 11. In view of the foregoing discussions, this Court is constrained to grant bail to the petitioners in the light of the decision of the Hon’ble Supreme Court in Mihir Rajesh Shah-Versus-State of Maharashtra and Another reported in 2025 Supreme (SC) 1890. 12. Thereby, both the petitioners are enlarged on bail on furnishing a bail Page No.# 5/5 bond of Rs.1,00,000/- (Rupees One Lac) each with 2 (Two) local sureties of like amount, one being Government surety, to the satisfaction of the learned Eleka Magistrate/ Jurisdictional Court, under the conditions that :- (i) the petitioners shall refrain from such activities with which they are alleged, (ii) the petitioners shall appear before the Investigating Officer on every fortnight till completion of investigation and, (iii) the petitioners shall not tamper with the evidence and jump the bail. 13. On breach of any of the bail conditions, the Court is at liberty to immediately cancel the bail granted to the petitioners. 14. In terms of the above observation, this Bail Application stands disposed of. 15. Send back the Case Diary. JUDGE Comparing Assistant