WhatsApp Intimation Of Arrest To Family Without Proof Of Service Falls Short Of S.48 BNSS Compliance, Renders Arrest Illegal : Gauhati High Court Grants Bail
Sanchayita Lahkar
The Gauhati High Court Single Bench of Justice Sanjeev Kumar Sharma held that sending arrest intimation notices to the family members of an arrested person through WhatsApp, without any proof of actual service, does not satisfy the statutory requirement of informing relatives of the arrest, and that such a deficiency renders the arrest itself illegal, entitling the accused persons to bail. The Court found that the notices issued to the family members were prepared in English, a language the relatives neither read nor understood, and that no proof of delivery was on record.
The petitioners filed an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking release on bail in connection with allegations under Section 20(b)(ii)C/29 of the NDPS Act. According to the prosecution, on 19.07.2025 at about 7:30 pm, the petitioners were found moving suspiciously while carrying trolley bags. Upon noticing the police, they allegedly attempted to flee but were intercepted. A search of the trolley bags reportedly led to the recovery of 75.4 kg of suspected ganja. The petitioners were arrested on 20.07.2025 and forwarded to the Chief Judicial Magistrate, Bongaigaon, and remained in custody thereafter.
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Counsel for the petitioners contended that notices under Sections 47 and 48 BNSS were not issued in compliance with statutory requirements. It was submitted that the notices were written in English, a language not understood by the petitioners, and that family members were similarly served notices in English without proof of proper service. The State was represented by the learned Additional Public Prosecutor.
The Court recorded, “This is an application filed under Section 483 of the BNSS, 2023 praying for releasing of the accused petitioners on bail in connection with Bongaigaon GRPS Case No. 86/2025 under Section 20(b)(ii)C/29 of the NDPS Act.” It noted, “The brief facts of the case are that on 19.07.2025 at about 7.30 pm the petitioners… were found moving around suspiciously… and a search of the trolley bags revealed a total amount of 75.4 kg of suspected Ganja.”
With regard to the arrest and subsequent procedure, the Court stated, “The petitioners were arrested on the same day on 20.07.2025 and forwarded on the same day to the learned CJM, Bongaigaon, where after the petitioners are still in jail.”
On the issue of compliance with statutory safeguards, the Court recorded the submission that “the said notices were not written in a language understood by the petitioners i.e. the English language… while the third petitioner's thumb impression was taken which also indicates that he is illiterate.” It further recorded that “the same lacunae is to be found in the notices under Section 48 BNSS sent to the family members of the petitioners written in the English language and that the said family members neither can read nor understand the English language.”
Upon examining the record, the Court observed, “A perusal of the notices under Section 48 available in the scanned TCR could go to show that they were prepared in the English language and sent to the relatives of the petitioners by way of WhatsApp messages, but there is no proof of service available.”
It then stated, “In the absence of actual service, it certainly cannot be held that there was due compliance with the provisions of Section 48 BNSS, as per mandate of the Apex Court in Vihaan Kumar Vs. State of Haryana & Another…”
Finally, the Court concluded, “In view of the above, the arrest of the petitioners are rendered illegal which entitles them to bail.”
The Court directed, “Accordingly, it is directed that the petitioners… shall be released on bail of Rs. 100,000/-(Rupees one lakh) each with 2 sureties each for the like amount to the satisfaction of the learned Trial Court in connection with the aforesaid case.”
“It is further provided that in the event of such release, it would be open for the I.O to move application for remand or custody along with reasons and necessity for the same after supply of the grounds of arrest in writing, setting forth the explanation for non-supply thereof within the stipulated schedule and on receipt of such application, the Magistrate shall decide the same expeditiously and preferably within a week of submission thereof by adhering to the principles of natural justice, as laid down in Mihir RajeshShah Vs. State of Maharastra & Another , reported in 2025 INSC 1288. The Bail petition stands disposed of accordingly.”
Advocates Representing the Parties
For the Petitioners: Mr. A.M. Khan, Mr. T.T. Moni, Md. R. Ali
For the Respondents: Mr. B. Sarma, learned Additional Public Prosecutor, Assam
Case Title: Sri Bappi Sarkar And 2 Ors. v. The State of Assam
Neutral Citation: 2026: GAU-AS:1640
Case Number: Bail Appln./4109/2025
Bench: Justice Sanjeev Kumar Sharma
