Judgement & Order (Cav)

1. Heard Mr. N.N.B. Choudhury, learned counsel for the petitioner and also heard Mr. S.C. Keyal, learned Standing Counsel, NCB.

2. The petitioner, namely, Rashid Hoque, son of Kapir Uddin Miah, resident of Village-Chhoto Falimari, Police Station-Dinhata, District-Coochbehar, West Bengal has filed this application under Section 483 BNSS, 2023 on 09.03.2025 praying for his bail in NCB Guwahati Case No. 02/2025, registered under Sections 8(c)/22(C)/29 of the NDPS Act, 1985, in which, he was arrested on 30.01.2025 and is in custody since then.

3. The petitioner contended that while he was arrested on 30.01.2025 the Notice issued to him under Section 47 BNSS by the authorities of NCB in said NCB Guwahati Case No. 02/2025 was not in accordance with law and also not in terms of the law laid down by the Hon’ble Supreme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269.

4. Placing the provisions of Section 36 of the BNSS, Mr. Choudhury, learned Senior Counsel submitted that even the arrest memo of the petitioner served on him on 30.01.2025 was not in accordance with the said provision and his arrest was in absence of any witness.

5. In this regard, Mr. Choudhury had shown the notice under Section 47 BNSS to the petitioner on 30.01.2025 annexed to this petition as Annexure-V.

6. Mr. Choudhury, learned Senior Counsel for the petitioner has also placed the decision of the Hon’ble Apex Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra).

7. Respondent NCB filed its objection with regard to the release of the petitioner on bail stating that the NCB personnel in presence of independent witnesses on 30.01.2025 early morning around 06:40 hrs., on the basis of specific information recovered 1.505 Kgs of Methamphetamine from the conscious possession of the petitioner, i.e., a black colour UPS from the Gauhati Railway Station while he was travelling in 12514 Secunderabad Superfast Express.

8. Accordingly, those 1.505 Kgs of Methamphetamine was seized from the possession of the petitioner under the NDPS Act. Subsequently, the petitioner was apprehended on 30.01.2025 itself and was brought to the office of the NCB Guwahati and his voluntary statement under Section 67 (c) of the NDPS Act, 1985 was recorded on 30.01.2025 before the Investigating Officer of said NCB Guwahati Case No. 02/2025 in which, the petitioner voluntarily confessed to consciously trafficking Methamphetamine Tablets that were seized in the case. Subsequently, the petitioner was arrested in said NCB Guwahati Case No. 02/2025 on 30.01.2025 under Sections 8(c)/22(C)/29 of the NDPS Act, 1985 serving notice under Section 47 BNSS to him in the office of the NCB in its Guwahati Zonal Unit, which the petitioner duly acknowledged.

9. Placing the case diary, Mr. Keyal, learned Standing Counsel, NCB submitted that at the time of arresting the petitioner in said NCB Guwahati Case No. 02/2025 on 30.01.2025 both his mother and father were informed in their respective mobile numbers pertaining to arrest of their son, i.e., the petitioner in the said NCB Case, where, the mobile numbers of his parents were provided by the petitioner himself and that the petitioner on 30.01.2025 itself acknowledged that during the time of his arrest his parents were informed individually in their respective mobile numbers.

10. Mr. Keyal by placing the said arrest memo submitted that the provisions of Sections 36 as well as 48 BNSShave been duly complied with.

11. It is stated that this Court, while considering a previous bail petition of the accused being Bail Appln No.1153/2025 has already judicially examined the same allegations and held that Sections 47 & 48 BNSS and Article 22 of the Constitution of India were duly complied with and that recovery was made from the conscious position of the petitioner and the bar of Section 37 of the NDPS Act is squarely attracted in the present case. Thus, there being no change in the circumstances, the present bail application deserves to be dismissed.

12. Refuting the aforesaid contention, Mr. Choudhury has contended that while dismissing the previous bail application by order dated 20.05.2025, it was no where discussed as to how Section 48 of the BNSS was duly complied with. Mr. Choudhury has forcefully urged that a bare perusal of the alleged notice under Section 48 dated 31.01.2025 (Annexure-4) at page-67 of the instant bail application makes it clear that the same was served upon the father of the petitioner on 31.01.2025 i.e. on the date of production of the petitioner before the learned CJM, Kamrup (M) and the same is in the english language and the father of the petitioner received the same by signing it in Bengali which shows that he is not conversant with the english language. Therefore, the requirement of serving the notice in a language in which the noticee understands, as held in Vihaan Kumar (supra), has not been complied with in the instant case, which has caused grave prejudice to the petitioner inasmuch as, the family members of the accused were left with no option or facility for preferring a bail application opposing the remand on the date of his production.

13. I have given my anxious considerations to the respective submissions of learned counsel for the petitioner as well as NCB.

14. This second bail application on behalf of the petitioner has been filed on what is described as a new ground i.e. non compliance with Section 48 BNSS and hence it would be apposite to deal with the same at the outset. In Vihaan Kumar Vs. State of Haryana and Another reported in 2025 SCC OnLine SC 269 the Supreme Court in its supplementing judgment was pleased to observe as follows:-

                   "3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, 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 meaningful and effective failing which, such arrest may be rendered illegal."

15. In Ahmed Mansoor & Anr. vs. The State representation. by ACP & Anr., reported in Criminal Appeal No. 4505/2025 SLP (Crl.) No. 198/2025, it was observed as follows:-

                   “Learned Senior counsel appearing for the respondent(s) has placed reliance on decisions of this Court in Kasireddy Upender Reddy v. State of Andhra Pradesh and Ors. - Criminal Appeal No. 2808/2025 dated 23.05.2025 and State of Karnataka v. Sri Darshan Etc. - Criminal Appeal Nos.3528-3534/2025 dated 14.08.2025.

                   In State of Karnataka v. Sr Darshan Etc. (supra) the facts governing are quite different. It was a case dealing with the cancellation of bail where the charge sheet had been filed and the grounds of detention were served immediately. This Court has, in fact, given its approval to the decision in Vihaan Kumar v. State of Haryana & Anr. (supra). Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh and Ors. (supra), this Court was pleased to hold in para 27 that the object underlying the provision that the grounds of arrest should be communicated has been explained by this Court in Vihaan Kumar v. State of Haryana & Anr (supra). Therefore, the law as laid down in Vihaan Kumar v. State of Haryana & An (supra) has been approved and reiterated in the abovesaid decisions.

                   In such view of the matter, we are inclined to hold that the present appeal deserves to succeed only on the ground that the mandate of furnishing the grounds of arrest at the time of securing the appellants has not been complied with. Therefore, we are not inclined to go into the merits of the case. However, while setting aside the order passed by the High Court and conseduently setting aside the order of arrest and remand, we would only say that liberty is aranted to the respondents to take recourse to law, to arrest, if a case is made out.

                   Suffice it is to state that the explanation by the Court before whom the arrestees are produced can never be an adequate compliance of furnishing the grounds of arrest at the time of securing an accused.

                   The appeal stands allowed, accordingly.

                   Pending application(s), if any, shall stand disposed of.”

16. In Mihir Rajesh Shah Vs The State of Maharashtra and Anr (2025) INSC 1288 the Supreme Court has held that the grounds of arrest must be furnished to the arrestee at least two hours before his production before the Magistrate. In the said case it was held as follows:-

                   “53. The above indicated lower limit of two hours minimum interval before the production is grounded in the functional necessity so that the right as provided to an arrestee under the Constitution and the statute is safeguarded effectively. This period would ensure that the counsel has adequate time to scrutinize the basis of arrest and gather relevant material to defend the arrestee proficiently and capably while opposing the remand. Any shorter interval may render such preparation illusory, thereby resulting in non-compliance of the constitutional and statutory mandate. The two-hour threshold before production for remand thus strikes a judicious balance between safeguarding the arrestee’s constitutional rights under Article 22(1) and preserving the operational continuity of criminal investigation.”

17. In Para No.47 in the same judgement it was held as follows:-

                   47. It would not be out of context now to refer to an obligation which has been imposed on a person making arrest, as provided under Section 5OA read in relation to Section 50 of the CrPC 1973 (now Section 48 and 47 of BNSS 2023 respectively), to inform the arrestee of his right to indicate his relative, friend or such other person for the purpose of giving information with regard to his arrest.

                   Simultaneously, a duty has also been cast on the person making arrest to forthwith thereafter inform of such arrest with reasons and the place where the arrested person is being held to the such indicated person. The police officer/person making any arrest shall make an entry of the fact as to who has been informed of such an arrest in a book to be kept in the police station. Further protection in this regard is reflected when a duty has been cast on the magistrate to satisfy himself, when the arrestee is produced before him, that the above requirement stands complied with. This requirement is in addition to the rights of an arrestee to be made aware of the grounds of arrest..

18. Therefore, the notice under Section 48 BNSS is to be served prior to the production of the accused before the Magistrate, which admittedly has not happened in the instant case. The purpose of the notice under Section 48, as explained by the Apex Court in Vihaan Kumar (Supra) is to provide the necessary opportunity to the detained persons through his relative, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Therefore, the purpose of the notice under Section 48 BNSS is essentially the same as one under Section 47 BNSS i.e. to enable proper an adequate legal representation to be provided for the arrested person at the time of consideration of his remand application but even more effectively. However, in the instant case, although the notice containing the grounds of arrest have been served upon the father of the petitioner on the date of his production, the same is not in a language which the noticee understood, as adverted to herein before. The father of the petitioner had signed the notice receipt in the Bengali language and script which would prima facie indicate that he is habituated to signing in the said language and in the face of the claim of the petitioner that he cannot understand the english language, it was upon the prosecution to show before this Court that he could read and understand the English language. But, NCB in its counter affidavit/objection makes no such claim and consequently, the claim of the deponent filing the additional affidavit i.e. the father of the petitioner has to be accepted at this stage. There is nothing to show that the grounds of arrest were furnished to the relatives/friends/nominated person of the petitioner at any subsequent stage either in any language such person understood.

19. In such view of the matter, I am inclined to hold that the application deserves to succeed only on the ground that the mandate of furnishing the grounds of arrest to the relatives/friends/nominated person of the petitioner in a language which such person understood within the stipulated time has not been complied with. Therefore, without going into the merits of the remaining contentions, I am of the view that a case for grant of bail has been made out notwithstanding the provisions of Section 37 of the NDPS Act.

20. Accordingly, the prayer for bail is allowed.

21. It is directed that the petitioner, named above, shall be released on bail of Rs.1,00,000/- (Rupees One Lakh) with two local sureties of like amount, at least one of them being a regular Government servant, to the satisfaction of learned Special Judge, NDPS/CJM Kamrup(M) in connection with the aforesaid case.

22. It is further provided that the liberty is granted to the respondent to take recourse to law, to arrest the petitioner if a case is made out, as explained in Mihir Rajesh Shah (Supra) as follows:-

                   “55. It goes without saying that if the abovesaid schedule for supplying the grounds of arrest in writing is not adhered to, the arrest will be rendered illegal entitling the release of the arrestee. On such release, an application for remand or custody, if required, will be moved along with the reasons and necessity for the same, after the supply of the grounds of arrest in writing setting forth the explanation for non-supply thereof within the above stipulated schedule. On receipt of such an application, the magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice.”

23. The bail application stands disposed of.

24. Return the case diary.