In a significant ruling on procedural safeguards during arrest, the Gauhati High Court on Thursday granted bail to three men accused of carrying over 75 kilograms of suspected ganja. The court held that the arrest was illegal due to non-compliance with mandatory provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Justice Sanjeev Kumar Sharma delivered the order in open court, underscoring the importance of following arrest procedures strictly, even in serious narcotics cases.
Background of the Case
The case arose from Bongaigaon GRPS Case No. 86/2025 under Section 20(b)(ii)(C)/29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
According to the prosecution, on the evening of July 19, 2025, police found the three accused - Bappi Sarkar, Naba Das, and Sanjay Sing - moving suspiciously with trolley bags. When they allegedly tried to flee, they were intercepted. A search reportedly led to the recovery of 75.4 kg of suspected ganja.
The accused were arrested the next day and have remained in custody since July 20, 2025.
Their lawyers argued that the arrest itself was flawed.
Defence Argument: Notices Not in Understandable Language
Appearing for the petitioners, counsel submitted that the mandatory notices under Sections 47 and 48 of the BNSS were not properly served.
The court record showed that the notices were written in English. The defence pointed out that although two of the accused had signed in English, they did not understand the language. The third accused had affixed a thumb impression, indicating illiteracy.
More importantly, the notices sent to their family members were also in English and transmitted via WhatsApp. There was no proof that the family members received or understood them.
The defence argued that this violated the accused persons’ right to be informed of the grounds of arrest in a language they understand.
Court’s Observations
Justice Sharma carefully examined the scanned trial court records. The judge noted that the Section 48 notices were indeed prepared in English and sent via WhatsApp, but there was no material on record to prove actual service.
Read also:- Supreme Court Clears Siddhartha Reddy in Actress Pratyusha Death Case, Says No Proof of Abetment
“In the absence of actual service, it certainly cannot be held that there was due compliance,” the bench observed, referring to the requirement under Section 48 of the BNSS.
The court relied on the Supreme Court’s ruling in Vihaan Kumar Vs. State of Haryana & Another, which stressed strict compliance with procedural safeguards during arrest.
The judge made it clear that mere dispatch of a notice is not enough. What matters is whether it was properly served and understood.
Because these requirements were not met, the court held that the arrest was illegal.
Decision: Bail Granted
Having found procedural lapses, the court ruled that the accused were entitled to bail.
Justice Sharma directed that all three petitioners be released on bail upon furnishing a bond of ₹1 lakh each, along with two sureties of the same amount, to the satisfaction of the trial court.
However, the court also left the door open for further action. It clarified that the investigating officer may move an application for remand or custody if necessary, but only after supplying the grounds of arrest in writing and explaining the earlier failure to do so within the stipulated time.
The Magistrate, the court said, must decide such an application “expeditiously and preferably within a week,” following principles of natural justice as laid down in Mihir Rajesh Shah Vs. State of Maharashtra & Another.
With these directions, the bail application was disposed of.
Case Title: Sri Bappi Sarkar & 2 Ors. vs State of Assam
Case No.: Bail Appln./4109/2025
Decision Date: 06 February 2026
