The Gauhati High Court has clarified that compliance with Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023, does not require the written notice of arrest to be in the arrested person’s native language, so long as the grounds of arrest are effectively communicated in a language they understand. This ruling reinforces the constitutional mandate under Article 22(1) while rejecting rigid formalism in procedural compliance.
Background & Facts
The Dispute
The petitioner, Somir Uddin, son of the late Abdul Sahid, was arrested on 12.06.2025 in connection with Ratabari Police Station Case No. 99/2025, registered under Sections 22(c), 25, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The arrest followed the recovery of a commercial quantity of narcotic substances from a vehicle bearing registration AS-11EC-5747, intercepted during a naka check at Vetarbond AD Camp at approximately 2:30 a.m. on the same date.
Key Facts
- The informant, Danswrang Basumatary, Sub-Inspector of Police, Ratabari, lodged the FIR on 12.06.2025 based on intelligence from the Additional Superintendent of Police (HQ), Sribhumi.
- Narcotics recovered included a commercial quantity as defined under the NDPS Act.
- The petitioner was produced before the Chief Judicial Magistrate, Sribhumi, on 12.06.2025 and granted one day police custody.
- He was subsequently remanded to judicial custody on 13.06.2025 and has remained in custody since.
- The charge-sheet was filed on 27.11.2025, leading to registration of NDPS Special Case No. 63/25.
- The matter is currently at the stage of charge hearing.
- The petitioner is a school dropout who studied up to the fourth standard in Bengali medium.
- The notice under Section 47 BNSS was issued in English; the petitioner signed it with his name in English.
- The notice under Section 48 BNSS was served on the petitioner’s wife, Amrita Begum, who is illiterate and affixed her thumb impression.
- The notice under Section 48 states that the grounds of arrest were explained to Amrita Begum in Bengali.
- The bail application affidavit was filed in English, with the deponent affirming understanding of its contents.
Procedural History
- 12.06.2025: Arrest of petitioner following recovery of narcotics.
- 12.06.2025: Production before CJM, Sribhumi; one day police custody granted.
- 13.06.2025: Judicial custody ordered.
- 27.11.2025: Charge-sheet filed; NDPS Special Case No. 63/25 registered.
- 05.05.2026: Bail application filed under Section 483 BNSS, 2023.
- 05.05.2026: Judgment pronounced dismissing bail application.
Relief Sought
The petitioner sought bail on grounds of procedural irregularities under Sections 47 and 48 BNSS, citing violations of Vihaan Kumar v. State of Haryana and Mihir Rajesh Shah v. State of Maharashtra, and claimed that the notices were not communicated in a language he or his wife understood.
The Legal Issue
The central question was whether the failure to issue the notice under Section 48 BNSS in Bengali, or to provide an English notice to an illiterate spouse, renders the arrest illegal under Article 22(1) of the Constitution and the precedents in Vihaan Kumar and Mihir Rajesh Shah.
Arguments Presented
For the Petitioner
The petitioner’s counsel contended that:
- The notice under Section 47 BNSS was in English, and the petitioner, being a fourth-standard Bengali-medium dropout, could not comprehend it.
- The notice under Section 48 BNSS was served on his illiterate wife, Amrita Begum, in English, and she only affixed a thumb impression.
- The Supreme Court in Vihaan Kumar held that grounds of arrest must be communicated effectively in a language the arrested person understands.
- The decision in Mihir Rajesh Shah mandates that notices be issued in the language understood by the arrested person or their representative.
- Non-compliance with these mandates renders the arrest illegal and warrants bail.
For the Respondent
The State, through the Additional Public Prosecutor, argued that:
- The IO’s record explicitly states that the grounds of arrest were explained to Amrita Begum in Bengali, which was not disputed.
- The petitioner’s ability to sign his name in English indicates some familiarity with the language.
- The bail application affidavit was filed in English and affirmed by the same deponent, indicating her understanding of legal proceedings.
- Mihir Rajesh Shah was held to be prospective in operation by the Delhi High Court and does not apply to arrests prior to its pronouncement on 06.11.2025.
- The recovery of a commercial quantity of narcotics triggers the stringent bail conditions under Section 37 NDPS Act.
The Court's Analysis
The Court undertook a detailed examination of Section 48 BNSS and the Supreme Court’s ruling in Vihaan Kumar v. State of Haryana. It emphasized that the constitutional mandate under Article 22(1) requires effective communication of the grounds of arrest, not mechanical adherence to linguistic form.
"The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved."
The Court held that the IO’s notation in the Section 48 notice - that the grounds were explained in Bengali - constituted substantial compliance. The fact that the notice was written in English was irrelevant, as the substance of the communication was conveyed in a comprehensible manner.
The Court further distinguished Mihir Rajesh Shah, noting that the Supreme Court explicitly stated in paragraph 58 that the procedural requirements laid down therein would govern arrests "henceforth." Since the petitioner was arrested on 12.06.2025, and Mihir Rajesh Shah was delivered on 06.11.2025, the decision could not be applied retrospectively. The Delhi High Court’s ruling in Karan Singh v. State NCT of Delhi was cited to reinforce this prospective application.
The Court also noted the inconsistency in the petitioner’s position: if the deponent (the petitioner’s wife) could not understand English, then the bail application affidavit - filed in English and sworn by her - would be invalid. This undermined the credibility of the claim.
Finally, the Court observed that the recovery of a commercial quantity of narcotics under Section 22(c) NDPS Act triggers the stringent bail conditions under Section 37, which require the court to be satisfied that there are reasonable grounds for believing the accused is not guilty. No such satisfaction was possible on the material before the Court.
The Verdict
The bail application was dismissed. The Court held that there was no violation of Section 48 BNSS or Article 22(1), as the grounds of arrest were effectively communicated in Bengali. The decision in Mihir Rajesh Shah was held to be prospective and inapplicable. The petitioner remains in judicial custody pending trial. The Court further noted that the recovery of a commercial quantity of narcotics under the NDPS Act makes bail exceptionally difficult under Section 37, and no grounds were shown to warrant an exception.
What This Means For Similar Cases
Effective Communication Trumps Linguistic Form
- Practitioners must focus on whether the grounds of arrest were actually explained in a comprehensible language, not whether the written notice matches the accused’s preferred language.
- Police records must clearly document the language used for oral explanation - a mere notation is sufficient if unchallenged.
Prospective Application of New Procedural Norms
- New Supreme Court rulings on arrest procedures apply only to arrests occurring after the date of judgment unless expressly made retrospective.
- Arrests prior to Mihir Rajesh Shah (06.11.2025) cannot be invalidated solely on the basis of its requirements.
Affidavit Consistency Is Critical
- If a deponent claims ignorance of English to challenge a notice, but files an affidavit in English affirming understanding, the court may reject the claim as contradictory and lacking credibility.
- Always verify the language of supporting affidavits when challenging procedural compliance on linguistic grounds.
NDPS Bail Remains Stringent
- Recovery of commercial quantity under Section 22(c) continues to trigger Section 37 NDPS Act, placing a heavy burden on the accused to demonstrate innocence.
- Procedural defects alone will not override the presumption of guilt under Section 37 unless they directly invalidate the arrest itself.
