Failure To Strictly Comply With S.48 BNSS Arrest Intimation To Family Not Fatal Where Service Was Impracticable In Disturbed Areas: Gauhati High Court
Sanchayita Lahkar
The Gauhati High Court Single Bench of Justice Sanjeev Kumar Sharma held that the statutory requirement of communicating grounds of arrest in writing to the relatives of an accused cannot be strictly enforced where the circumstances make such compliance practically impossible. The Court noted that since the relatives of the accused resided in Manipur, which was at the relevant time a highly disturbed region marked by sporadic ethnic violence, serving the requisite notice and obtaining proof of service within the prescribed timeframe was not reasonably feasible. Drawing on the Supreme Court's position that failure to furnish such intimation "may" render an arrest illegal, the Court held that this conditional language permits recognition of exceptional circumstances and accordingly declined to grant bail.
On 17 August 2025, a police team conducting special naka checking duty on NH-29 intercepted a vehicle travelling from Dimapur towards Manja. The driver and occupant displayed suspicious behaviour, prompting their detention. Upon a search conducted following due authorisation by the SDPO, two packets wrapped in yellow duct tape were recovered from the vehicle, containing a muddy-coloured powdery substance that tested positive for morphine in a field test. The total weight of the recovered substance was 961.04 grams. Both the driver and the occupant were apprehended, and a case was registered under the NDPS Act and relevant provisions of the Bharatiya Nyaya Sanhita, 2023.
The accused persons subsequently filed a bail application before the Gauhati High Court. The petitioners' counsel raised procedural objections, contending that the arrest memo of the second petitioner lacked a proper signature, that witness addresses were absent, and that written intimation of the grounds of arrest had not been duly served upon the relatives. The second petitioner also cited medical ailments in support of the bail prayer. The prosecution opposed the application, asserting substantial compliance with the relevant procedural requirements.
The Court recorded, “a perusal of the case records received from the learned Court below would indicate that the signature of the petitioner No. 2/arrestee though not there, her thumb impression is available and it has been mentioned as RTI i.e. right thumb impression and her name is also mentioned and immediately below that is the signature of the I/O.” It further stated, “Therefore, the aforesaid submission is not tenable.”
With regard to the absence of addresses of witnesses, the Court stated, “In the considered opinion of this Court prima facie, since the signatures of the two witnesses are present unless the contrary is shown, the Court would prima facie proceed on the assumption that the same is in conformity with the requirements laid down under Section 36 BNSS.”
On the contention relating to Section 48 BNSS, the Court noted, “On perusal of the record, it is seen that a WT message has been sent by the O.C, Dillai PS, Karbi Anglong to the O.C, Lilong PS, Thoubal, Manipur which contains the grounds of arrest along with a request to serve the same to the family/guardian of the arrested persons i.e. the present petitioners.” Referring to the Supreme Court decision, it recorded, “the grounds of arrest are required to be communicated in writing to the relatives/friends/nominated persons of the accused and failure to do so ‘may’ render the arrest illegal.”
The Court then observed, “Judicial notice of the fact has to be taken that at the time of occurrence i.e. 18.08.2025, Manipur was still a highly disturbed area with sporadic incidents of ethnic violence and it could not have been very easy to serve such notices to the said persons within such a short time and also to obtain proof of service.” It further stated, “The decision in Vihaan Kumar (supra) cannot be read as permitting of no exception regardless of the circumstances. The use of the term ‘may’ would prima facie support this view.” Consequently, it recorded, “Therefore, strict compliance with the provisions of Section 48 BNSS cannot be insisted upon in certain exceptional circumstances as the present one.”
On the merits of bail, the Court observed, “it appears that the petitioner No. 2 along with the petitioner No. 1 were caught red handed while transporting the contraband, which is of commercial quantity and therefore, the rigor of Section 37 of the NDPS would apply with full force in the present case.” It further stated, “the Court is not in a position to come to a view that there are reasonable grounds to believe that the accused persons are not guilty of the alleged offence.”
The Court directed, “the jail authorities are directed to provide proper medical treatment to the petitioner No. 2, including by way of taking her to the hospital, as and when required. For the aforesaid reasons, the prayer for bail stands rejected at this stage. The Bail Application stands dismissed accordingly.”
Advocates Representing the Parties:
For the Petitioners: Ms. A. Medhi, Advocate
For the Respondents: Mr. B. Sarma, Additional Public Prosecutor, Assam
Case Title: Nawaz Shrif And Anr vs The State Of Assam
Neutral Citation: 2026: GAU-AS:1597
Case Number: Bail Appln./3301/2025
Bench: Justice Sanjeev Kumar Sharma
