Introduction:

In Nawaz Shrif & Anr v. State of Assam, Bail Application No. 3301 of 2025, the Gauhati High Court considered two significant legal issues: the scope of compliance with Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the grant of bail in cases involving commercial quantity under the NDPS Act. Justice Sanjeev Kumar Sharma, while dismissing the bail application, held that strict compliance with Section 48 BNSS—mandating written intimation of the grounds of arrest to relatives of the accused—cannot be insisted upon in exceptional circumstances.

The case arose out of an alleged seizure of 961.04 grams of Morphine during naka checking on NH-29. The quantity recovered being commercial in nature, the stringent conditions under Section 37 of the NDPS Act were attracted. While the petitioners argued procedural non-compliance and sought bail, the Court found that the circumstances surrounding the service of arrest intimation justified a pragmatic approach.

The judgment is notable for its nuanced interpretation of procedural safeguards under the new criminal law regime and its reiteration of the rigorous standards governing bail in NDPS cases.

Background of the Case:

The prosecution case, as recorded by the Court, stated that police personnel were conducting naka checking on National Highway 29 when they intercepted a vehicle coming from the Dimapur side. Upon search of the vehicle, two packets containing muddy-coloured powder were recovered. Field testing revealed the substance to be Morphine. The total weight of the recovered contraband was 961.04 grams, which falls within the category of commercial quantity under the NDPS Act.

The petitioners, including the driver of the vehicle, were apprehended at the spot. They were booked under Sections 21(c), 25, and 29 of the NDPS Act, read with Sections 61(2) and 123 of the Bharatiya Nyaya Sanhita, 2023.

Subsequently, a wireless telegraph (WT) message was sent by the Officer-in-Charge of Dillai Police Station, Karbi Anglong, to the Officer-in-Charge of Lilong Police Station, Thoubal, Manipur. The message contained the grounds of arrest along with a request to serve the same upon the family or guardian of the arrested persons. Notably, the message was dated 18 August 2025—the very date of arrest.

The petitioners approached the High Court seeking bail, raising, inter alia, the issue of non-compliance with Section 48 BNSS.

Arguments on Behalf of the Petitioners:

Counsel for the petitioners contended that Section 48 of the BNSS mandates written intimation of the grounds of arrest to the relatives or nominated persons of the accused. It was argued that strict compliance with this statutory requirement is mandatory, and failure to comply vitiates the arrest and subsequent proceedings.

The petitioners relied upon judicial precedents interpreting similar provisions under the Code of Criminal Procedure and constitutional safeguards under Article 22. They argued that procedural compliance is not a mere formality but a fundamental protection against arbitrary arrest.

It was further submitted that there was no proof that the relatives of the accused were actually served with written intimation of the grounds of arrest. Merely sending a WT message, according to the petitioners, did not amount to compliance with Section 48.

On the merits of the bail application, it was argued that the prosecution case rested on recovery from a vehicle and that the accused were entitled to the benefit of doubt at the stage of bail. The petitioners urged the Court to consider the presumption of innocence and grant them liberty pending trial.

Special emphasis was placed on the medical condition of petitioner No. 2, seeking humanitarian consideration.

Arguments on Behalf of the State:

The State opposed the bail application, emphasizing the commercial quantity of the contraband recovered. It was argued that Section 37 of the NDPS Act imposes stringent conditions for grant of bail in cases involving commercial quantity. Unless the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is unlikely to commit an offence while on bail, bail cannot be granted.

The State contended that both petitioners were caught red-handed while transporting Morphine. Therefore, the rigors of Section 37 applied in full force.

Regarding Section 48 BNSS, the State argued that a WT message was promptly sent on the date of arrest to the concerned police station in Manipur, requesting service of the grounds of arrest upon the family members. The State submitted that the addresses of the relatives were in Manipur, which at the relevant time was experiencing ethnic violence and disturbances. Serving written notices and obtaining proof of service within a short time frame was practically difficult.

Thus, the State argued that substantial compliance had been made, and strict insistence on procedural technicalities would defeat the ends of justice.

Interpretation of Section 48 BNSS:

Section 48 of the BNSS mandates that the police officer making an arrest shall inform a relative, friend, or nominated person of the arrested individual about the grounds of arrest. The provision is aimed at ensuring transparency and safeguarding the rights of the accused.

Justice Sanjeev Kumar Sharma examined whether strict compliance is mandatory in all circumstances. The Court observed that the relatives of the accused were residents of Manipur. Judicial notice was taken of the fact that on 18 August 2025, Manipur was still a highly disturbed area, with sporadic incidents of ethnic violence.

The Court held that it could not have been easy to serve such notices within a short time or to obtain proof of service under such conditions. The decision in Vihaan Kumar (supra) could not be read as permitting no exception regardless of circumstances. The use of the word “may” in the statutory text, according to the Court, indicated flexibility.

Thus, the Court concluded that strict compliance with Section 48 BNSS cannot be insisted upon in certain exceptional circumstances, and the present case constituted such an exception. The WT message dated 18 August 2025 demonstrated that efforts were made to communicate the grounds of arrest.

Consideration of Bail Under NDPS Act:

Turning to the merits of bail, the Court examined Section 37 of the NDPS Act. The contraband recovered—961.04 grams of Morphine—fell within commercial quantity.

The Court observed that both petitioners were allegedly caught red-handed while transporting the contraband. Therefore, the statutory embargo under Section 37 applied.

The Bench stated that it was not in a position to conclude that there were reasonable grounds to believe that the accused persons were not guilty. Consequently, the conditions precedent for grant of bail were not satisfied.

However, considering the medical condition of petitioner No. 2, the Court directed jail authorities to provide proper medical treatment, including hospital visits as required.

Court’s Judgment:

The High Court dismissed the bail application. It held:

Section 48 BNSS does not mandate rigid compliance in all situations.

Exceptional circumstances, such as disturbed conditions in Manipur, justified a pragmatic approach.

Substantial compliance was shown through the WT message sent on the date of arrest.

The rigors of Section 37 NDPS Act barred grant of bail in absence of reasonable grounds of innocence.

At the same time, the Court safeguarded humanitarian concerns by directing appropriate medical care for petitioner No. 2.

Legal Significance:

This judgment is significant for two reasons:

Flexible Interpretation of Procedural Safeguards: While safeguarding rights of the accused, courts may recognize practical difficulties in exceptional situations.

Reaffirmation of NDPS Bail Standards: The ruling reiterates the strict threshold for bail in commercial quantity cases.

The decision balances procedural safeguards with pragmatic realities and underscores the stringent nature of NDPS jurisprudence.