Page No.# 1/8 vs The State Of Assam on 12 February, 2026

                                                                       Page No.# 1/8

GAHC010281162025




                                                                 2026:GAU-AS:2051

                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./16/2026

            MD ACHOUBA
            SON OF BASHIR AHMED
            R/O VILL- KWAKTA,P.S. KWAKTA
            DIST. BISHNUPUR, MANIPUR

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE LEARNED PP, ASSAM



Advocate for the Petitioner   : S KAUR, L BANIK,N NEOG

Advocate for the Respondent : PP, ASSAM,




                                           BEFORE
            HONOURABLE MR. JUSTICE ANJAN MONI KALITA
                                           ORDER

Date : 12-02-2026

Heard Ms. L. Banik, learned senior counsel appearing for the accused applicant and Mr. R. J. Baruah, learned Additional Public Prosecutor for the State.

2. This is an application under Section 483 of the BNSS, 2023 for granting bail to the accused applicant namely, MD Achouba, who was arrested on Page No.# 2/8

21.06.2025, in connection with NDPS Case No. 96/2025, arising out of Silchar P.S. Case No. 638/2025 under Section 303(2)/317(2)/317(5)/318(3) of the BNS, 2023 read with Section 21(c)/25/29 of the NDPS Act, 1985 pending in the Court of Sessions/Special Judge, Cachar, Silchar.

3. The gist of the prosecution's case is that an FIR was lodged by S.I. (P) Arindom Bharadwaz, alleging that on 20.06.2025, information was received by S.I. (UB) Achyut Krishna Phukan, stating that suspected drug peddlers travelling in a bus coming from Manipur were likely to enter Silchar via ISBT, carrying suspected narcotic substances. It was alleged that following the information, the Silchar police officials reached the ISBT Bypass at around 12:45 PM, thereafter, in the presence of two independent witnesses, the police signalled the bus to stop. Upon stopping, the police apprehended three persons: Md. Achouba, Saidur Rahman, and Kamthingsang Khongsai. During the search of the bus, the police recovered 3095 grams of a brown powdery substance suspected to be opium from a secret chamber installed at the rear passenger seat of the bus. The police also recovered 240 WIN cigarettes and 560 red packets marked "Godzilla" containing mosquito coils from the same chamber.

4. On receipt of the FIR, the police registered Silchar P.S. Case No. 638/2025 under the aforementioned sections, and after the accused persons, including the accused applicant, were produced, they were sent to jail on 21.06.2025. Since then, the accused persons have been languishing in judicial custody. Subsequently, after the conclusion of the investigation, the Silchar police submitted a charge sheet against the accused applicant and the other two persons on 03.11.2025.

5. Ms. L. Banik, the learned counsel for the accused applicant, submits that while arresting the accused applicant, the police did not comply with the Page No.# 3/8

mandatory provisions of Sections 36 and 47 of the BNSS, 2023. She contends that during the arrest, neither the signature of any witnesses nor any family member of the accused applicant were taken on the arrest memo, and no notice under Section 47 of BNSS, 2023 was sent to the family members of the accused applicant. Therefore, she submits that there is an apparent violation of the statutory provisions of Sections 36 and 47 of the BNSS, 2023. She further argues that since the personal liberty of the accused applicant has been curtailed and there has been a violation of rights under Article 22(1) of the Constitution of India, the accused applicant should be allowed to go on bail, as his arrest is an illegal one. Additionally, she points out that in the notice under Section 47 of the BNSS, 2023 issued to the accused applicant, there is no indication of when the notice was actually served to him.

6. In support of her submissions, Ms. Banik, learned counsel for the accused applicant, has relied upon the ratio laid down in the case of Mihir Rajesh Shah v. State of Maharashtra and Ors, reported in 2025 SCC Online SC 2356, wherein the Hon'ble Supreme Court held that a written copy of the grounds of arrest must be supplied to the arrested person within a reasonable time, and not later than two hours prior to the production of the arrestee before the learned Magistrate. She, therefore, submits that in view of the aforesaid violation, the arrest of the accused applicant being illegal, the accused applicant should be released on bail on this ground alone.

7. On the other hand, the learned Additional Public Prosecutor appearing for the State submits that the instant case involves recovery of commercial quantity of narcotics contraband i.e Heroin from the possession of the accused applicants. Therefore, the rigours of section 37 of the NDPS Act shall be applicable in the instant case. He submits that only because a procedural lapse Page No.# 4/8

has occurred while arresting the accused applicants by not attesting the Arrest Memos by one witness, shall not give right to the accused applicants to be enlarged on bail. To support his contention that section 37 shall be squarely applicable in the instant case, the learned Additional Public Prosecutor has referred to the case of Hero Sarkar-vs-Union of India through the Intelligence Officer Narcotics Control Bureau Kolkata Zonal Unit [CRM (NDPS) 445/2024], decided by the High Court at Calcutta on 28.03.2025, wherein, the Hon'ble Calcutta High Court held that even when an arrest is made without complying the requirements of section 41B Cr.P.C. (Section 36 BNSS) still, bail cannot be granted in an NDPS case without satisfying the two conditions mentioned in that Section.

8. This Court has perused the Trial Court Record, which has been produced before this Court and has considered the submissions made by the learned counsel appearing for the parties.

9. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds.

10. It is not in dispute that in the case of NDPS Act also, the provisions of arrest of a person as laid down in the BNSS, 2023 have to be complied with.

11. In this connection, Section 36 and Section 62 of the BNSS being relevant Page No.# 5/8

are quoted hereinbelow:-

"36. Procedure of arrest and duties of officer making arrest- Every police officer while making an arrest shall-

(a) Bear and accurate, visible and clear identification of his name which will facilitate easy identification;

(b) Prepare a Memorandum of Arrest which shall be-

(i) Attested by at least one witness, who is a member of the family of the arrested person or a respectable member of the locality where the arrest is made;

(ii) Counter signed by the person arrested; and

(c) Informed the person arrested, unless the Memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest.

.....

62. Arrest to be made strictly accordingly to Sanhita- no arrest shall be made except in accordance with the provisions of this Sanhita or any other law for a time being in force providing for arrest."

12. A conjoint reading of the aforesaid two Sections makes it clear that a Memorandum of Arrest is a written document that serves as confirmation that the individual in question was arrested. In addition to meeting the essential requirements, it must provide particulars that are specific. A minimum of one witness is required to vouch for its authenticity. For the best possible outcome, this witness ought to be a member of the accused person's family and in the event that a family member is unavailable, a respectable individual of the locality in which the arrest is made may be called upon to testify as witness. In the second step, of course, the arrested person is required to counter sign the Page No.# 6/8

Arrest Memo himself.

13. What is discernable from the aforesaid two sections is that there is mandate provided by the aforesaid section of 36 that the Arrest Memo has to be signed by a witness; either he is a member of the family of the arrested person or a respectable member where the arrest is made. Section 62 provides that no arrest shall be made except in accordance with the provisions of BNSS or any other law for the time being in force providing for arrest. Therefore, any arrest that has to be made is mandatorily has to comply with the provisions and procedure of arrest while making such arrest. Non compliance of such provisions will be in violation of the mandatory provisions which will in turn make such arrest illegal. Once an arrest becomes illegal, the arrested person shall have an unfettered right to be set at liberty i.e. to be released on bail.

14. Though Section 37 of the NDPS Act provides for certain conditions to be fulfilled before granting bail of an arrested person in case of seizure of commercial quantity, the same will be applicable only when the arrest is itself not illegal. However, if any arrest is made in violation of the mandatory provisions as laid down in the BNSS, 2023, then the same goes to the root of the matter and the initial arrest itself becomes illegal.

15. In the instant case in hand, it is seen that the Arrest Memo does not contain any signature or attestation of any person, neither of a member of the family of the arrested person or of any respectable member of the locality wherein the arrest was made. This clearly violates the mandates of Section 36 read with Section 62 of the BNSS, 2023.

16. In view of the aforesaid, this Court is of the considered opinion that the rigours of Section 37 of the NDPS Act shall not be applicable in a case wherein Page No.# 7/8

the initial arrest itself is rendered illegal due to violation of Section 36 of the BNSS, 2023.

17. In view of the ratio laid down by the Hon'ble Apex Court in the case of Mihir Rajesh Shah (Supra) as well as the procedural mandates laid down under Section 36 of the BNSS, 2023, this Court is of the considered opinion that there is a violation of Section 36 of the BNSS, 2023 in the instant case while arresting the accused applicants whereby curtailing their fundamental rights guaranteed under Article 21 and 22 of the Constitution of India.

18. The case law that has been cited by the learned Additional Public Prosecutor is not found applicable in the instant case in hand.

19. It is noted that although a WT massage was sent to the concerned Officer-in-Charge (OC) of the jurisdiction where the accused applicant generally resides in Manipur, no notice under Section 47 of the BNSS, 2023 was sent to the family member of the accused applicant. Therefore, there appears to be a violation of the mandate of Section 47 of the BNSS, 2023 in the arrest of the accused applicant. Based on the above, it is evident that there is a prima facie violation of both Sections 36 and 47 of the BNSS, 2023 in the present case.

20. In view of the aforesaid discussions and findings, this Court directs that the accused applicant to be released forthwith on bail on furnishing of bail bond of Rs.1,00,000/ with two sureties of like nature to the satisfaction of the learned Sessions/Special Judge, Cachar, Silchar subject to the following conditions:-

(i) that the accused applicant shall appear before the Trial Court as and when required;

(ii) that the accused applicant shall not directly or indirectly make any inducement, threat or promise to any person who may be Page No.# 8/8

acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court;

(iii) that the accused applicant shall provide his contact details including photocopies of their Aadhar Card or Driving License or PAN card as well as, mobile numbers, and other contact details before the Sessions/Special Judge, Cachar, Silchar;

(iv) that the accused applicant shall not leave the jurisdiction of the Sessions/Special Judge, Cachar, Silchar without prior permission of the said Court and when such leave is granted by the said Court, the accused applicant shall submit his addresses and contact details during such leave before the said Court; and