Gauhati High Court holds man’s arrest illegal in NDPS case, says kin not informed about it

Case

The prosecution alleged that upon receiving information about the transport of a suspected contraband inside a car, a search team was constituted and the area in question was searched.

During the search operation, it was alleged that 14 soap cases were recovered from the car in which the accused was traveling containing suspected heroin. On weighing the suspected contraband, the weight of the same was found to be 1,239 grams.

Following the seizure, an FIR was registered against the accused under Sections 22(c) (contravention in relation to psychotropic substances), 25 (allowing premises, etc., to be used for commission of an offence.), 29 (abetment and criminal conspiracy) of NDPS Act, 1985.

Arguments

The counsel for the accused submitted that there was a violation of Section 48 of BNSS, 2023 while arresting the accused applicant by the arresting authorities.

He argued that there was nothing on record to suggest that notice was served on the relatives of the accused. He also submitted that other co-accused in the case were granted bail by a coordinate bench on the grounds of non compliance of Section 48 of the BNSS, 2023.

Opposing the plea, the counsel for the state submitted that notice under Section 48 is available on record, though there was no mention or affirmation as to receipt of the same by any nominated friend or relative of the accused.

Ruling

The court noted that no material was on record to indicate that the relatives/ friends/ nominated persons of the accused applicant were intimated about the arrest of the accused.

“Though the information was requested to be given to the family members/ relatives/ friends about the arrest of the accused applicant, no such material could be found in the record indicating such compliance and receipt of any such information by family members/ relatives/ nominated person about the arrest of the accused applicant,” the court said.

The court further observed that a note was present in the notice which indicated that the relatives of the accused applicant was intimated or communicated about the arrest through their jurisdictional police station. However it found that the note did not indicate who was informed over telephone.

“The aforesaid note does not indicate that who was actually informed over telephone, rather, it seems, that the jurisdictional Police Station was intimated by the arresting authority over the telephone in addition to sending the WT Msg to the jurisdictional Police Station,” the court said.

The court, therefore, held the arrest illegal and granted bail to the accused in the NDPS case.