[Cites 8, Cited by 0]

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 27 February, 2026

                                                                       Page No.# 1/9

GAHC010038732026




                                                                 2026:GAU-AS:3040

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

                               Case No. : Bail Appln./569/2026

            MANIK CHAND
            S/O SAHAN MIAH
            1 NO. SAHAPARA, P.S - MANKACHAR, DIST- SOUTH SALMARA
            MANKACHAR, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S ISLAM, A R MONDAL,MR. M MONDAL

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                   HONOURABLE MR. JUSTICE ANJAN MONI KALITA

                                           ORDER

Date : 27.02.2026

1. Heard Mr. S. Islam, learned counsel for the accused applicant. Also heard Mr.

K. K. Parasar, learned Additional Public Prosecutor for the State of Assam.

Page No.# 2/9

2. This is an application filed under Section 483 of BNSS, 2023, praying for

granting bail to the accused-applicant who was arrested on 22/11/2025 in

connection with Mankachar P.S. Case No. 157/2025, registered under Sections

21(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. An FIR was lodged on 23.11.2025 by one S. I. Rustom Ali Ahmed of

Mankachar Police Station, alleging, inter alia, that on 22.11.2025, at about 8:41

PM, on receipt of a secret information, the police while doing Naka Checking at

Mankachar Tinali at about 8:50 PM, the police found the accused-applicant

coming from Mirjumla side towards Mankachar town on a bike bearing

Registration No. AS-24-7726; that during the body search and inspection of the

bike, they recovered a pink coloured bag containing 20 bottles of Codeine

Phosphate & Triprolidine Hydrochloride Syrup. The police seized the materials

and arrested the accused-applicant.

4. On receipt of the FIR, the Police registered Mankachar P.S. Case No.

157/2025, under Sections 21(C)/29 of the NDPS Act, 1985, against the accused-

applicant.

5. The learned counsel submits that earlier bail application in the same case

was rejected by this Court on 16.02.2026. However, he has filed this instant bail Page No.# 3/9

application with any ground i.e., non-compliance with the mandatory provisions

of Sections 36 of BNSS.

6. The learned counsel appearing for the accused applicant submits that while

arresting the accused applicant the arresting authority though has issued an

Arrest Memo but the same is not in compliance of Section 36 of BNSS, 2023. He

submits that as per the mandates of Section 36 of the BNSS, no signature of

any witness who is the member of the family of the person arrested or a

respectable member of the locality where the arrest was made, was taken on

the Arrest Memo. He 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 the ground only.

7. In support of his submission, the learned counsel appearing for the accused

applicant has referred to the case of D. K. Basu, Ashok K. johri-Vs-State of

West Bengal, reported in AIR 1997 SC 610, wherein, the Hon'ble Apex Court

lays down that Police personnel carrying out arrest shall prepare a Memo of

Arrest at the time of arrest and such Memo shall be attested by at least one

witness.

8. Learned APP on the other hand submits that the case diary in the instant Page No.# 4/9

case is required. He further submits that the instant case involves recovery of

commercial quantity of narcotics contrabands i.e., 20 bottles of Codeine

Phosphate & Triprolidine Hydrochloride Syrup (total 2659 grams) from the

possession of the accused-applicant. Therefore, the rigours of Section 37 of the

NDPS Act shall be applicable in the instant case. He further submits that only

because a procedural lapse has occurred while arresting the accused applicant

by not attesting the Arrest Memo by one witness, shall not give any right to the

accused applicant to be enlarged on bail.

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.

Page No.# 5/9

11. In this connection, Section 36 and Section 62 of the BNSS being relevant

are quoted hereinbelow:-

"36. Procedure of arrest and 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 arrest 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.

Page No.# 6/9

"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 severs 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 requied 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

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 Page No.# 7/9

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 arrest 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 Page No.# 8/9

rigorous of Section 37 of the NDPS Act shall not be applicable in a case wherein

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 D.

K. Basu (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 applicant whereby curtailing their fundamental rights guarranted under

Article 21 and 22 of the Constitution of India.

18. 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/- while two sureties of like nature to the satisfaction of the learned

Special Judge, South Salmara, Mankachar subject to the following conditions:-

(i) That the accused applicant shall cooperate in the investigation of Mankachar

P.S. Case No. 157/2025 whenever he is called for;

(ii) That the accused applicant shall appear before the Investigating Authority as

and when required by the Investigating Authority;

(iii) That the accused applicant shall not directly or indirectly make any Page No.# 9/9

inducement, threat or promise to any person who may be acquainted with the

facts of the case, so as to dissuade such person from disclosing such facts

before the Investigating Authority;

(iv) That the accused applicant shall provide his contact details including

photocopies of his Aadhar Card or Driving License or PAN card as well as,

mobile number, and other contact details before the learned Special

Judge, South Salmara, Mankachar.

(v) That the accused applicant shall not leave the jurisdiction of the learned

Special Judge, South Salmara, Mankachar without prior permission of the said

Court and when such leave is granted by the said Court, the accused applicant

shall submit his address and contact details during such leave before the said

Court; and