Page No.# 1/8 vs The State Of Assam on 17 February, 2026

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GAHC010030182026




                                                                  2026:GAU-AS:2283

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./456/2026

            MUSTAFA ALI AND ANR
            S/O ABDUL RASHID
            R/O UDIANA, BALAGAON,
            P.S. RANGIA
            DIST. KAMRUP, ASSAM


            2: INAMUL HUSSAIN
             S/O LATE ALTAFUDDIN AHMED
            R/O UDIANA
             BALAGAON
             P.S. RANGIA
            DIST. KAMRUP
            ASSAM


            VERSUS


            THE STATE OF ASSAM
            TO BE REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY


Advocate for the Respondent : PP, ASSAM,
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                                     BEFORE
           HONOURABLE MR. JUSTICE ANJAN MONI KALITA
                                     ORDER

Date : 17-02-2026

Heard Mr. A. Ahmed, learned counsel appearing for the accused applicant and Mr. K. K. Parasar, learned Additional Public Prosecutor for the State.

2. This is an application under Section 483 BNSS, 2023, has been filed by the accused applicants, namely, Mustafa Ali and Inamul Hussain , praying for grant of bail in connection with Rangia P.S. Case No. 278/2025, under Sections 17(c)/29 of the NDPS Act, 1985.

3. The prosecution case is inter alia that one W.S.I. Jitumani Rabha of Rangia Police Station has lodged an FIR before Rangia P.S. alleging that they receipt a credible information that a huge consignment of narcotics (Opium) had been received from Manipur by some narcotics dealers, namely, Aitul Ali and his brother, Mamtul Ali @ Mantul Ali and the aforesaid narcotics had been stocked in their house; that based on the input, a raid was carried out in the house of Aitul Ali and his brother Mamtul Ali, @ Mantul Ali at village Udiana, Balagaon, P.S.-Rangia and recovered 86 kgs (without cover) of Opium valued at Rs. 5 Crores and 16 lakhs in open market which had been packed in 45 nos. of packets; that getting suspicious of presence of some police, Aitul Ali and his brother Mamtul Ali @ Mantul Ali fled away from the house; that Jarina Begum, wife of the Mamtul Ali @ Mantul Ali, who is also a partner in the narcotics trade, was stopped from fleeing away; that along with Jarina Begum, some other persons, including the accused applicant were also present in the house, who were in the process of opening the Opium packets and weighing them, and Page No.# 3/8

thereafter, to deliver the same to other places, were also apprehended; that Rs. 25,25,400/- in cash along with the aforesaid Opium were also recovered from the house; that the aforesaid Aitul Ali and Mamtul Ali, along with their wives and other family members, had been engaged in narcotics trade for a long time; that from the narcotics trade, they have accumulated huge assets in terms of lands, houses, luxury cars and invested in various business ventures; that the accused persons do not have any other known source of legitimate income; and that Aitul Ali and Mamtul Ali have a number of NDPS Act cases pending against them.

4. On receipt of the FIR, the police registered Rangia P.S. Case No. 278/2025, under the aforementioned sections.

5. The present accused applicants after their arrest was produced before the Sub-Divisional Judicial Magistrate, Rangia, on 14.12.2025 and since then, the accused applicants are in Judicial Custody.

6. Mr. Ahmed, learned Counsel appearing for the accused applicants submits that the accused applicants are innocent and they were falsely implicated in the instant case. He submits that the accused applicants are no way linked to any narcotics drugs trade. He submits that the accused applicants, on 14.12.2025, went to the house of one Atul Ali to visit one old ailing person of his family and then suddenly, the police arrived at the house of Atul Ali and started to searching the house. During search, the police recovered the alleged contraband from the house. He submits that the accused applicants have no knowledge regarding presence of contraband substances in the house of the Atul Ali and as such, they are not guilty of the offence as alleged in the FIR.

7. Mr. Ahmed, learned counsel appearing for the accused applicants have Page No.# 4/8

been arrested without following the mandatory provisions of the BNSS, 2023 as while arresting the accused applicants, no notices under Section 47 BNSS were given to them providing the grounds of their arrest. He submits that the notices under Section 47 do not contain the signatures of the accused applicants, meaning thereby, no service of the notices to the accused applicants. He further submits that notices under Section 48 BNSS were given to one Wasif Saikia, the Gaon Burah of the village instead of giving to any of the family members or friends of the accused applicants or any person nominated by the accused applicants. He submits that the aforesaid Gaon Burah is neither known to them nor was he nominated by them. Therefore, the notices cannot be termed as notices under Section 48 of BNSS. In view of the aforesaid non-compliance of the mandatory provisions of BNSS, he submits that the arrest has become illegal and the accused applicants should be granted bail on that ground alone.

8. In support of his submissions, Mr. Ahmed, learned counsel for the accused applicants, has relied upon the ratio laid down in the case of Mihir Rajesh Shah v. State of Maharashtra and Ors, reported in 2025 SCC Online SC 2356, wherein the Hon'ble Supreme Court has held that a written copy of the grounds of arrest must be supplied to the arrested person within a reasonable time and not later than two hours prior to the production of the arrestee before the learned Magistrate.

9. Mr. Parasar, learned Additional Public Prosecutor submits that there is no violation of Sections 47 and 48 of BNSS, 2023 in the instant case while arresting the accused applicants. He submits that the accused applicants are the workers who have been working with the masterminds and the main accused persons, Aitul Ali and Mamtul Ali. He submits that the accused applicants have confessed in their statements before the Police about their involvement in the Drugs Page No.# 5/8

business along with the aforesaid main accused persons. He further submits that there is no violation of Section 47 of BNSS as a proper Arrest Memos were prepared by the Police and the same were given to them by the Police which contain the grounds of their arrests. Therefore, he submits that there is no prejudice caused to them even though their signatures were not obtained in the notices under Section 47 of BNSS, 2023. He submits that the notices under Section 48 of BNSS, 2023 was served upon the Gaon burah of the village, as the accused applicants nominated the Gaon burah and they were given the notices under Section 48 of BNSS, 2023. He submits that Section 48 of BNSS, 2023 specifically provides that a notice under Section 48 of BNSS, 2023 can be given to the nominated person of the arrestee. Hence, he vehemently opposes the prayer of bail of the accused applicant.

10. This Court has gone through the Case Diary that has been produced before this Court as well as heard the submissions made by the learned counsel representing the respective parties.

11. On perusal of the Notice under Section 47 of BNSS, 2023, it is seen though the grounds of Arrest and other details are available, no signatures of the arrested persons, i.e., the signatures of the accused applicants are not available in the notices. This fact prima facie indicates that no notices under Section 47 of BNSS, 2023 were served or issued to the accused applicants while arresting them. There is no material found in record to show that the notices were given to them on a later stage too. The Hon'ble Apex Court in a catena of cases, including the case of Mihir Rajesh Shah (supra) has held that the non- service of Notice under Section 47 BNSS, 2023 to the arrestee is violative of the mandates of provisions of Section 47 BNSS which makes the arrest illegal and thereby, providing an indefeasable right to bail to the arrested person.

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12. Though Section 37 of the NDPS Act provides for certain conditions to be fulfilled before granting bail to an arrested person in case of seizure of commercial quantity, the same will be applicable only when the arrest is itself not illegal. However, if any arrest is made in violation of the mandatory provisions as laid down in the BNSS, 2023, then the same goes to the root of the matter and the initial arrest itself becomes illegal.

13. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution of India. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds.

14. In view of the aforesaid, this Court is of the considered opinion that the rigours of Section 37 of the NDPS Act shall not be applicable in a case wherein the initial arrest itself is rendered illegal due to violation of Section 47 of the BNSS, 2023. Therefore, this Court is of the considered opinion that there is a violation of Section 47 of the BNSS, 2023 in the instant case while arresting the accused applicants whereby curtailing the fundamental rights of the accused applicants guaranteed under Article 21 and 22 of the Constitution of India without following the due legal process.

15. Having found prima facie violation in the arrest of the accused applicants in service of notices under Section 47 of BNSS, 2023, this Court does not feel any requirement to examine the merits of the argument of the learned counsel for the accused applicants about Section 48 notices of BNSS, 2023.

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16. In view of the aforesaid discussions and findings, this Court directs that the accused applicants shall be released forthwith on bail on furnishing of a bail bond of Rs. 50,000/ (Fifty Thousand only) each with two sureties of like nature to the satisfaction of the learned Sub-Divisional Judicial Magistrate, Rangia, subject to the following conditions:-

(i) that the accused applicants shall appear before the Investigation Officer as and when required;

(ii) that the accused applicants 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 Investigating Officer;

(iii) that the accused applicants shall provide their contact details including photocopies of their Aadhar Cards or PAN cards as well as, mobile numbers, and other contact details before the Sub-Divisional Judicial Magistrate, Rangia;

(iv) that the accused applicants shall not leave the jurisdiction of the SubDivisional Judicial Magistrate, Rangia, without prior permission of the said Court and when such leave is granted by the said Court, the accused applicants shall submit their addresses and contact details during such leave before the said Court;

and

(v) that the accused applicants shall not commit any Page No.# 8/8

offence while on bail.

17. In view of the aforesaid directions, the instant bail application stands disposed of as allowed.

18. Return the Case Diary.

JUDGE

Comparing Assistant