1. Petitioner arrested for drug offences; bail sought alleging non-compliance with arrest procedural safeguards under BNSS. (Para 2 , 3 , 4 )
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2026 Supreme(Gau) 1938
THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJEEV KUMAR SHARMA, J.
Sh. Lalhmingsanga, S/o. Vanlalbiaka(L) - Petitioner
Versus
Union of India, R/b the Secretary, Ministry of Finance, Department of Revenue, New Delhi, Through the Zonal Director, Narcotics Control Bureau, Agartala Zonal Unit, Agartala, Tripura – Respondent
Bail Appln./64 of 2026
Decided On : 03-09-2026
Important Points
Non-compliance with mandatory procedural requirements of Sections 36, 47, and 48 of the BNSS regarding arrest memos and communication of grounds of arrest violates Articles 21 and 22 of the Constitution, rendering the arrest illegal and entitling the accused to bail.
Subject
Criminal Law - Bail
Act Referred
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.22(c), S.25, S.27(a), S.29, S.67, S.8(c)
BHARATIYA NAGARIK SURAKSHA SANHITA : S.36, S.47, S.48
CRIMINAL PROCEDURE CODE : S.50
CONSTITUTION OF INDIA : Art.21, Art.22
BHARATIYA NAGARIK SURAKSHA SANHITA : S.36, S.47, S.48
CRIMINAL PROCEDURE CODE : S.50
CONSTITUTION OF INDIA : Art.21, Art.22
Headnote
(A) Arrest Procedure - Memorandum of Arrest - Absence of witness signature - Failure to obtain the signature of a family member or a respectable local person as mandated under Section 36 of the BNSS renders the arrest procedure defective. (Para 13)
(B) Grounds of Arrest - Communication - Vague notices - Informing an arrestee of "conscious involvement" without specifying the nature of the involvement or the facts supporting the allegation constitutes total non-compliance with Section 47 of the BNSS. (Para 14, 15)
(C) Rights of Accused - Communication to Family - Section 48 BNSS - Telephonic intimation of arrest is not equivalent to communicating the grounds of arrest; delayed written notice issued after the remand order is a gross violation of statutory and constitutional mandates under Articles 21 and 22. (Para 16, 17)
(D) Prejudice - Legal Representation - The failure to furnish grounds of arrest, coupled with the absence of legal representation during remand proceedings, causes demonstrable prejudice to the accused, entitling them to bail. (Para 19, 20)
Issues: Whether the non-compliance with Sections 36, 47, and 48 of the BNSS renders the arrest illegal and entitles the petitioner to bail.
Result: Bail granted.
(B) Grounds of Arrest - Communication - Vague notices - Informing an arrestee of "conscious involvement" without specifying the nature of the involvement or the facts supporting the allegation constitutes total non-compliance with Section 47 of the BNSS. (Para 14, 15)
(C) Rights of Accused - Communication to Family - Section 48 BNSS - Telephonic intimation of arrest is not equivalent to communicating the grounds of arrest; delayed written notice issued after the remand order is a gross violation of statutory and constitutional mandates under Articles 21 and 22. (Para 16, 17)
(D) Prejudice - Legal Representation - The failure to furnish grounds of arrest, coupled with the absence of legal representation during remand proceedings, causes demonstrable prejudice to the accused, entitling them to bail. (Para 19, 20)
Issues: Whether the non-compliance with Sections 36, 47, and 48 of the BNSS renders the arrest illegal and entitles the petitioner to bail.
Result: Bail granted.
Legal Category Hierarchy
-
crime and sentencing
-
narcotic drugs and psychotropic substances
-
possession and trafficking
- methamphetamine (Para 3)
-
possession and trafficking
-
narcotic drugs and psychotropic substances
- practice and procedure
- constitutional law
Advocates Appeared:
For the Petitioner: Mr. Imran Uddin Chowdhury
For the Respondent: Mr. C. Zoramchhana (Ld. Special PP)
For the Petitioner: Mr. Imran Uddin Chowdhury
For the Respondent: Mr. C. Zoramchhana (Ld. Special PP)
Table of Contents
2. Petitioner argues arrest illegal due to BNSS procedural violations; prosecution claims substantial compliance with statutory and constitutional requirements. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 )
3. Court finds total non-compliance with Sections 36, 47, and 48 of BNSS, resulting in violations of Articles 21 and 22. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 )
4. Non-compliance with mandatory BNSS arrest procedures (Sections 36, 47, 48) renders arrest illegal and violates fundamental rights to bail. (Para 22 )
5. Petitioner granted bail with conditions; prosecution may re-arrest after complying with BNSS requirements. (Para 23 , 24 )
6. What constitutes sufficient compliance with Section 47 of BNSS regarding communication of grounds of arrest?
The notice must inform the accused of the substance of grounds, including how they are allegedly involved, not merely state 'conscious involvement'. (Para 7 , 13 , 14 , 15 , 17 , 18 , 20 )
7. Does a telephonic intimation of arrest comply with Section 48 of BNSS?
No. Section 48 requires communication of grounds of arrest, not just intimation of arrest, to a nominated person or family member. (Para 16 , 17 )
8. When must written notice under Section 48 of BNSS be served?
The notice must be issued prior to or contemporaneously with the remand order; service 14 days after arrest, post-remand, constitutes violation. (Para 5 , 16 )
9. Is the absence of witness signatures on the arrest memo under Section 36 of BNSS a mere procedural irregularity?
No. The requirement for a signature of a family member or local respectable person is mandatory; non-compliance without valid explanation violates BNSS. (Para 4 , 13 )
10. Does non-furnishing of written grounds of arrest automatically render an arrest illegal?
Yes, when combined with failure to communicate substance of grounds and demonstrable prejudice, such as inability to oppose police remand effectively. (Para 18 , 19 , 20 , 22 )
JUDGMENT :
SANJEEV KUMAR SHARMA, J.
Heard Mr. Imran Uddin Chowdhury, learned counsel for the petitioner. Also heard Mr. C. Zoramchhana, learned Special Public Prosecutor, NCB.
2. This is an application filed under ND&PS Case No. 166/2025 arising out of NCB Crime No. 1/2025 under Sections 8(c), 22(c), 25, 27A & 29 of the ND&PS Act.
3. The brief facts of the case are that on 06.03.2025 at about 2115 hrs. Excise and Narcotics, Mizoram had seized 48.061 Kg of crystal Methamphetamine from a Mahindra Scorpio bearing registration No. AS 16E 0044 at Khatla near Tennis Court, Aizawl, Mizoram from the conscious possession of accused Joseph Hmangaihzual and Muglamtuanga and three other accused persons namely, Ms. Zaitinthluaii and Sing Hun Lian and Lalengzaua were arrested in the follow up operation in connection with the seizure. A case has been registered by Excise and Narcotics, Mizoram vide Ex. N- Case No. 40/25 u/s 22(c) of the ND&PS Act, 1985. Subsequently the case was taken over by the NCB on 13.03.2025. According to the prosecution, during course of investigation on the basis of statements of co-accused persons as well as documents like bank statements, call records etc., the involvement of the petitioner was revealed and accordingly, he was arrested after serving him notice under Section 67 of the ND&PS Act on 09.04.2026.
4. The petitioner was produced before the learned Judicial Magistrate First Class, Aizawl, on 11.04.2026, and by an order passed on the said date, he was remanded to 72 hours of NCB custody, and subsequently was remanded to judicial custody, where he continues to remain till date. The learned counsel for the petitioner assails the arrest chiefly on three grounds:
i) The arrest memo under Section 36 of the BNSS does not bear the signature of any witness, whether a family member or a respected person of the locality where the arrest was effected.
ii) In the notice under Section 47 of the BNSS served upon the arrestee, the only purported ground of arrest shown therein is the "conscious involvement" of the petitioner in the alleged offence, with no mention of any facts demonstrating such alleged conscious involvement.
iii) There was no effective communication of the grounds of arrest to the family members, friend, or nominated person of the petitioner. What is claimed by the Investigating Officer (IO) is that a telephonic intimation of arrest was made to the wife of the petitioner, which constitutes wholly insufficient compliance with the mandate of Section 48 of the BNSS , as explained in Vihaan Kumar Vs State of Haryana reported in (2025) 5 SCC 799.
5. Furthermore, it is pointed out that the prosecution's purported written notice under Section 48 of the BNSS dated 10.04.2026 was actually submitted for dispatch at the Post Office on 24.04.2026, 14 days after the date of arrest and long after the petitioner had already been remanded, firstly to NCB custody and thereafter to judicial custody, which is in direct violation of the settled law in this regard as explained in the case of Mihir Rajesh Shah Vs State of Maharashtra & Anr., reported in (2026) 1 SCC 500.
6. In view of the above, it is argued that there has been a gross violation of not only statutory provisions, but also of the constitutional provisions of Articles 21 & 22, entitling the petitioner to be released on bail.
7. The learned counsel representing the NCB submits that there has been substantial compliance with the aforesaid statutory and constitutional provisions, and strenuously urges that the petitioner and his family members were well aware of the grounds of arrest. It is submitted that details were mentioned in the arrest memo prepared at the time of the petitioner's arrest, signed by the petitioner, and that the notice under Section 47 also indicates the recovery of contraband from the Mahindra Scorpio vehicle registered in the petitioner's name, alongside the relevant statutory penal offences under the ND&PS Act. Furthermore, the wife of the petitioner wa
