Page No.# 1/9 GAHC010044992026 2026:GAU-AS:8470 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./678/2026 SEKH SALBHI S/O SEKH AAS MOHAMMAD, R/O AURAHA, WARD NO. 4, JEETPURSIMARA, PS SIMARA, DIST BARA,NEPAL VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, R MALI,MR. I U CHOWDHURY,MD A RAHMAN,MR. SURAJIT DAS,MR A W AMAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 12.06.2026 1. Heard Mr. S. Das, the learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, the learned Additional Public Prosecutor for the State of Assam. 2. This application under Section 483 of the Bharatiya Nagarik Surakhya Page No.# 2/9 Sanhita, 2023, has been filed by the petitioner, namely, Sekh Salbhi, who has been detained behind the bars since 16.12.2025(177 days), in connection with Bongaigaon GRPS Case No. 181/2025, under Sections 20(b)(ii)(C) of NDPS Act, 1985. 3. The gist of accusation in this case is that on 16.12.2025, one Sanjib Choudhury had lodged an FIR before the Officer-In-Charge of Bongaigaon GRPS, inter alia, alleging that on 16.12.2025, a routine operation was conducted by the personnel of Bongaigaon GRPS in the Bongaigaon Railway Station. it is alleged in the FIR that at 8:07 AM, the New Delhi Rajdhani Express, (20505 DN) coming from Dibrugarh to New Delhi, arrived at Platform No. 01, New Bongaigaon Junction and stopped. Thereafter, the police team started search of Coach No. B-12 and during the course of search operation, one person was found carrying a trolley bag in a suspicious manner and after seeing the police party, the said person attempted to flee. On checking of the said trolley bag, two packets wrapped in brown adhesive tapes, suspected to contain cannabis (ganja) were recovered therefrom. 4. At about 8:20 AM, the train was about to depart from the Bongaigaon Junction, the team highlighted that at Platform No. 01, along with the accused, (present petitioner) and a thorough search was conducted thereafter. 5. It is also stated in the FIR that at 10:03 AM, the seizure list in respect of the recovered contraband was prepared and it was found that the total weight of suspected ganja) recovered from the petitioner was 26.9 kgs. Thereafter, on the basis of the aforesaid FIR, Bongaigaon GRPS Case No. 181/2025, was registered under Sections 20(b)(ii)(C) of NDPS of NDPS Act, 1985 and investigation was initiated. Ultimately, on completion of the Page No.# 3/9 investigation, charge sheet has been laid and Special (Nar.) Case No. 10(BGN/2026) was registered before the court of the learned Special Judge, Bongaigaon. 6. Mr. S. Das, the learned counsel for the petitioner has submitted that the instant bail application was preferred by the present petitioner during the course of the investigation of the case. However, during the pendency of this bail application, charge sheet has been laid. He submits that the petitioner has approached this court seeking bail mainly on three grounds. 7. The learned counsel for the petitioner submits that the first ground on which the petitioner is seeking bail is violation of the fundamental rights of the petitioner under Article 22 clause 2 of the Constitution of India in not producing him before the Magistrate within 24 hours of the time of his arrest. He submits that though the liberty of the petitioner was curtailed after preparation of seizure list at 10:03 AM on 16.12.2025, when the seizure list was prepared and when he was suspected of carrying commercial quantity of contraband, however, in the arrest memo prepared by the arresting authority, the date and time of his arrest was shown at 11:00 AM on 17.12.2025. He submits that though the exact time of his production before the Magistrate is not known, however, it would certainly be after the time of arrest as indicated in the arrest memo, i.e., 11:00 AM on 17.12.2025. He submits that as such the petitioner was not produced before the Magistrate after his liberty was curtailed even before 10:03 AM on 16.12.2025. He submits that failure to show the exact time of arrest in the arrest memo and failure to produce the petitioner before the Magistrate within 24 hours of his actual arrest, he is amounts to violation of his fundamental rights under Article 22 (clause 2) of the Constitution of India and as such on that ground alone, he submits that the petitioner is entitled to Page No.# 4/9 get bail. 8. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Supreme Court of India in the case of “Directorate of Enforcement Vs. Subhash Sharma” reported in “2025 SCC OnLine SC 240.” 9. He further submits that the second ground which he is emphasizing is that the family members from the petitioner did not receive any notice under Section 48 of the BNSS intimating in writing the grounds of his arrest before he was remanded to judicial custody by the Magistrate before whom he was produced after his arrest. 10. In support of his submission, he has cited the ruling of the Apex Court in the case of “Vihaan Kumar Vs. State of Haryana and Another” reported in “2025 SCC Online SC 269”. 11. He further submits that in the instant case the petitioner is also claiming bail on the ground of violation of the rights of the petitioner under Section 50 of the NDPS Act, 1985. He submits that though the seized contraband in this case was recovered from the trolley bag which is alleged to have been carried by the present petitioner, however, when a common search, both of person and the bag is made, the compliance of Section 50 of the NDPS Act, 1985 is mandatory. He submits that under such circumstances even for searching the bag which the petitioner was carrying at the time of search procedure, he has to be given an option to be searched before a Gazetted Officer or a Magistrate and it is only when he consents not to be so searched in. He consents the waiver of the presence of a Gazetted Officer or a Magistrate in his own writing, there would be compliance of Section 50 of the NDPS Act, Page No.# 5/9 1985. 12. The learned counsel for the petitioner submits that in the instant case, bare perusal of notice under Section 50 of NDPS Act, 1985 where the signatures of the present petitioner was obtained, it would revealed that it contained a pre-printed consent form where the petitioner signature was obtained by the police. He submits that this may not be regarded as compliance of Section 50 of the NDPS Act, 1985. He submits that in case of any such search where the suspect waives is right to be searched in presence of a Gazetted Officer or a Magistrate such waiver should be reduced into writing and has to be duly signed by the accused person which has not been done in this case according to learned counsel for the petitioner. 13. In support of the submission he has cited the ruling of the Apex Court in the case of “Ranjan Kumar Chadha Vs. State of Himachal Pradesh” reported in “(2023) SCC OnLine SC 1262.” 14. The learned counsel for the petitioner submits that due to violation of the statutory as well as constitutional rights of the petitioner, he is entitled to get bail in this case. He further submits that there is a discrepancy in the quantity of contraband seized in this case as in the FIR the quantity of contraband seized is shown to be 26.9 kg, whereas in the seized list, the said quantity is indicated as 25.9 kg. 15. On the other hand Mr. P.S. Lahkar, the learned Additional Public Prosecutor vehemently opposed the grant of bail to the present petitioner. He submits that the contraband involved in this case is of commercial quantity. Hence, the embargo of Section 37 of the NDPS Act is applicable to this case. 16. He further submits that there has been no violation of the provisions Page No.# 6/9 contained in Article 22(2) of the Constitution of India in as much as the arrest memo clearly indicates the date and time of arrest of the petitioner as 11:00 AM on 17.12.2025. He submits that the petitioner was produced before the Judicial Magistrate on 17.12.2025 itself and as such, there has no violation of any mandatory requirement of any statutory or constitutional provisions. He further submits that as regards notice under Section 48 of the BNSS, 2023 is concerned, same has been sent to the father of the present petitioner, namely, Sekh Aas Mohammad, at his Maharashtra address through the Officer-In-Charge of Charli Police Station. However, he fairly submits that no information is there as to said notice has been served to the father by the concerned police station. He also submits that as regards compliance of Section 50 of the NDPS Act is concerned, the notice under Section 50 of the NDPS was given to the present petitioner before conducting search of his person and belongings and the petitioner had consented to be searched without the presence of Gazetted Officer or Magistrate. Therefore, he submits that the said waiver has been duly signed by the petitioner indicating his counsel. He submits that as the petitioner is an illiterate person, he is giving signatures of the consent form indicates that he has waived his right in search of a presence of a Gazette Officer or Magistrate. He, therefore, submits that the prayer for bail may be rejected. 17. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the scanned copy of the records of Special (Nar. Case No. 10(BGN/2026) as well as scanned copy of the connected Case Diary which was requisitioned in connection with this case. Let us first consider as to whether there has been compliance of Section 48 of BNSS, 2023 in the instant case. When the petitioner, who is the accused in Special (Nar. Case No. 10(BGN/2026) has Page No.# 7/9 contended that his family members have not received the notice under Section 48 of BNSS, 2023 the burden shifts on the prosecution side to show that there has been compliance of the prosecution requirement of communicating the ground of arrest in writing to the family members/friends/nominated persons of the accused. 18. In the instant case, from the report dated 27.05.2026, the Officer-In- Charge of Bongaigaon Police Station, it becomes clear that though the notice under Section 48 of the BNSS, 2023 was sent to the Officer-In-Charge of Charli Police Station, in Maharashtra, through W.T. Message, for serving the same upon the father of the present petitioner, however, the communication from the Officer-In-Charge of Bongaigaon Police Station, clearly indicates that there is no intimation regarding whether the Officer-In-Charge of the concerned Police Station, had been able to serve the notice upon the father of the petitioner. 19. The Apex Court has observed in the case of “Vihaan Kumar Vs. State of Haryana and Another” (supra) that the requirement of communicating the grounds of arrest in writing is not only to the arrested person but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaning and effective failing which such arrest may be rendered illegal. Thus, the mandate is of communicating the grounds of arrest. The meaning of communicating the grounds of arrest in writing that the notice in which such grounds of arrest are mentioned in writing has to be served on the family members/friends or nominated person mere sending of notice to the Officer-In-Charge of jurisdictional police station where the relatives of arrested person reside cannot be regarded as compliance of the aforesaid mandatory requirement unless there are materials on record to indicate that Page No.# 8/9 the notice under Section 48 of BNSS, 2023 were in fact delivered on the aforesaid persons. The arresting authority, i.e., the police which arrested the petitioner could have very well obtained this information through electronics from the Officer-In-Charge of Charli Police Station, however, nothing of that sought is there on record to come to a conclusion that the said notice were so served. As such, this court is constraint to hold that there are insufficient materials on record to come to a definite finding that there has been compliance of Section 48 of BNSS, 2023. As such, there appears to be violation of the constitutional mandate of comminuting the grounds of arrest in writing to the family members/friends/ nominated person of the petitioner which renders the arrest of the petitioner illegal and as such on that count the arrest of the petitioner gets vitiated and he is entitled to get bail. 20. It also appears that though in the instant case, the search and seizure processes were completed at 10:03 AM on 16.12.2025, however, the arrest memo shows the date and time of arrest as 17.12.2025 at 11:00 AM, which is apparently is not the time since when the petitioner was detained in connection with the aforesaid case. However, considering the fact that the petitioner is found entitled to be released on bail for violation of provisions contained in Section 48 of BNSS, 2023 as well as Article 22(2)(1) of the Constitution of India, this court is not inclined to delve upon other grounds raised by the learned counsel for the petitioner. 21. In view of the discussions made and the reasons stated in the foregoing paragraphs, the above-named petitioner is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with a surety of like amount subject to the satisfaction of the learned Special Judge, Bongaigaon with the following conditions: Page No.# 9/9 i. That the petitioner shall cooperate in the trial of Special (Nar.) Case No. 10(BGN/2026) pending before the court of the learned Special Judge, Bongaigaon; ii. That the petitioner shall appear before the trial court as and when so required by the trial court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the trial court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhaar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the trial court without prior permission of the trial court and when such leave is granted by the trial court, the petitioner shall submit his leave address and contact details during such leave before the trial court; and vi. That the petitioner shall not commit any offence while on bail. 22. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant