[Cites 9, Cited by 0]

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 27 February, 2026

                                                                        Page No.# 1/9

GAHC010038272026




                                                                  2026:GAU-AS:3042

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

                                Case No. : Bail Appln./573/2026

            HABIBUR RAHMAN ALIAS HABIBAR RAHMAN
            SON OF JALIL ALI
            RESIDENT OF VILL- UDIANA, BALAGAON, P.S. RANGIA, DIST. KAMRUP,
            ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : S KAUR, N NEOG,L BANIK

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                   HONOURABLE MR. JUSTICE ANJAN MONI KALITA

                                           ORDER

Date : 27.02.2026

1. Heard Ms. L. Banik, learned counsel for the accused applicant. Also heard Mr.

R. J. Baruah, learned Additional Public Prosecutor for the State of Assam.

Page No.# 2/9

2. This is an application under Section 483 BNSS, 2023, has been filed by the

accused applicant namely, Habibur Rahman @ Habibar Rahman, who is

languishing in Judical Custody since 14.1.2025, 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, Aitual Ali and his

brother, Mantul 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 Mautul 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 Mamutul

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 thereafter, to Page No.# 3/9

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,

house, 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 applicant including other co-accused persons after their

arrest were produced before the Sub-Divisional Judicial Magistrate, Rangia, on

14.12.2025 and since then, the accused applicant is in Judicial Custody.

6. Ms. L. Banik, learned Counsel appearing for the accused applicant submits

that the accused applicant is innocent and they he has been falsely implicated in

the instant case. She submits that the accused applicant is no way linked to any

narcotics drugs trade. She submits that the accused applicant on 14.12.2025, Page No.# 4/9

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. She submits that the accused applicant has no knowledge

regarding presence of contraband substances in the house of the Aitul. During

search, the police recovered the alleged contraband from the house. She

submits that the accused applicant has no knowledge regarding presence of

contraband substances in the house of the Aitul Ali and as such, he is not guilty

of the offence as alleged in the FIR.

7. Ms. L. Banik, learned Counsel appearing for the accused applicant submits

that the accused applicant has been arrested without following the mandatory

provisions of BNSS, 2023 as while arresting the accused applicant, no notice

under section 47 was given to him providing the grounds of their arrest. She

submits that the notice under Section 47 does not contain the signature of the

accused applicant meaning thereby, no service of the notice to the accused

applicant. She further submits that notice under Section 48 BNSS was given to

one Nazima Begum, wife of the accused applicant. However, the same was not

served in the language understood by the accused applicant. Therefore, she

submits that the same being violation of the ratio laid down by the Hon'ble Page No.# 5/9

Supreme Court the accused applicant has a right to bail.

8. In support of his submissions, Ms. L. Bank, learned counsel for the accused

applicant, has relied upon the ration 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. It was also held that notice should be in the language

understood by the arrested person.

9. Mr. R. J. Baruah, 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 applicant. He submits that the accused applicant is a worker who

has been working with the masterminds and the main accused persons, Aitul Ali

and Mamtul Ali. He submits that the accused applicant has confessed in his

statements before the Police about his involvement in the Drugs 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 him by the Police which contains the grounds

of his arrest. Therefore, he submits that there is no prejudice caused to him Page No.# 6/9

even though his signature was not obtained in the notice under Section 47 of

BNSS, 2023. He submits that the notice under Section 48 of BNSS, 2023 was

served upon his wife in compliance of Section 48 BNSS. Hence, he vehemently

opposes the prayer of bail of the accused applicant.

10. This Court has gone though 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 signature of the

arrested person i.e., the signature of the accused applicant is available in the

notice. This fact prima facie indicates that no notice under Section 47 of BNSS,

2023 was served or issued to the accused applicant while arresting them. There

is no material found in record to show that the notice was given to him 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 arrestee is violative of the mandates of provisions of

Section 47 BNSS which makes the arrest illegal and thereby, providing an

indefeasible 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 Page No.# 8/9

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

applicant in service of notice 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 applicant about Section 48 notices of BNSs, 2023.

16. In view of the aforesaid discussions and findings, this Court directs

that the accused applicant 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 Additional District & Sessions Judge,

Rangia, Kamrup, subject to the following conditions:-

(i) That the accused applicant shall appear before the

Investigation Officer as and when required;

(ii) That the accused applicant 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 Page No.# 9/9

Investigating Officer;

(iii) That the accused applicant shall provide his contact

details including photocopies of his Aadhar Card of PAN card as

well as, mobile number, and other contact details before the

Additional District & Sessions Judge, Rangia; Kamrup.

(iv) That the accused applicant shall not leave the jurisdiction

of the Additional District & Sessions Judge, Rangia, Kamrup

without prior permission of the said Court and when such leave is

granted by the said Court, the accused applicant shall submit his

addresses and contact details during such leave before the said

Court; and