ORDER

Heard Mr. W.R. Medhi, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing counsel, DRI.

2. This application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Jamal Uddin, has prayed for bail in connection with NDPS Case No. 147/2025 (arising out of DRI Case No. 22/CL/NDPS/METH/ DRI/GZU/2024-25) under Section 21(C)/22(C)/23(C)/25&29 of NDPS Act, 1985, pending in the court learned Additional Sessions Judge No. 5, Kamrup(M), Assam.

3. The said case after completion of investigation was charge-sheeted and presently stated to be at the stage of trial as NDPS Case No. 147 of 2025 before the learned Additional Sessions Judge, No. 5, (Kamrup) Guwahati. The petitioner was arrested on 17/12/2024 and presently in judicial custody.

4. The gist of the allegations is in the FIR is about recovery of commercial quantity of psychotropic substances (methamphetamine) quantified at 12 kgs and estimated at market value of Rs.12 crores from an intercepted vehicle (Mahindra Scorpio) bearing Registration No. AS01EN6552.

5. The primary contention of the petitioner side is that, notice under section 48 BNSS was not given to the family of the petitioner at the time of his arrest.

6. On the other hand, the Prosecuting Agency, the DRI, submitted and contended that the alleged offences are very serious in nature, constituting trafficking of illegal drugs in large quantities. It is submitted that the notice under section 48 BNSS was transmitted to the family of the accused at the time of his arrest. It is submitted that there has been substantial compliance with requirement of convening the information through the family member of the arrested accused. In the written objection filed by the prosecution, the copy of the said arrest memo is also fairly annexed. However, no notice under Section 48 BNSS has been annexed in the said objection.

7. From the scanned TCR, this Court could not locate a separate notice under section 48 BNSS about conveying of the grounds of arrest to the family member or nominated person of the arrested accused. However, in the arrest memo, it is stated that – “he has been duly apprised of the grounds of his arrest and his arrest had been intimated to his father over phone.”

8. In support of the contention of the substantial compliance, the prosecution as referred State of Karnataka -vs- Sri. Darshan Etc. reported in 2025 INSC 979 and State of Punjab vs. Gurjit Singh @ Geetu, reported in 2023 Legal Eagle (SC) 376. It is submitted that in view of the applicability of the twin conditions under Section 37 of the NDPS Act, mere long incarceration may not entitle the accused to bail invoking the provision of Article 21 of the Constitution of India.

9. The law on the subject has sufficiently crystallized by now, though it has to be accepted that at the relevant time when the petitioner was arrested on 17/12/2024 – the governing law as it stands today was still emerging. Nevertheless, the law as it stands today upon being laid down by the Hon’ble Apex Court has to be applied to the facts of the case. In terms of the law laid down in the several decisions including the landmark decision in Vihaan Kumar -vs- State of Haryana, reported in (2025) SCC Online SC 269, the notice under section 48 BNSS is mandatory in the absence of which the arrest would be vitiated making further detention untenable. The same has been further clarified in Mihir Rajesh Shah -vs- State of Maharashtra, reported in (2026) 1 SCC 500 and other related decisions. The Prosecuting Agency has contended about the test of prejudice, referring to the decision in State of Karnataka -vs- Sri. Darshan Etc. (supra). Both Vihaan Kumar (supra) and Darshan (supra) are rendered by Benches of equal strength (Coram 2). Therefore, in terms of the principle laid down in National Insurance Company Limited –vs- Pranay Sethi, reported in (2017) 16 SCC 680 and the Division Benc