Page No.# 1/13 vs The State Of Assam
2026 Latest Caselaw 225 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 20 January, 2026

                                                                        Page No.# 1/13

GAHC010245752025




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

                               Case No. : Bail Appln./3650/2025

            AMIRUL ISLAM ALIAS NENGRA POLICE AND ANR
            S/O LATE ABDUL MOJID
            R/O VILL- 2 NO PUBERGAON, PS MANKACHAR, DISTRICT- SOUTH
            SALMARA, ASSAM, PIN 783131

            2: ASHRAF ALI
             S/O ABDUL WADUD
            R/O VILL- 2 NO PUBERGAON
             PS MANKACHAR
             DISTRICT SOUTH SALMARA
            ASSAM
             PIN 78313

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. SANU HUSSAIN, MR K THAKUR,MR. K SEMA,MS P
BARMAN

Advocate for the Respondent : PP, ASSAM,
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                               BEFORE
             HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                   ORDER

Date : 20.01.2026

1. Heard Mr. S. Hussain, the learned counsel for the petitioners.

Also heard Mr. B. Sarma, the learned Additional Public Prosecutor for the State respondent.

2. This application under Section 483 of BNSS, 2023 has been filed by the petitioners, namely, (1) Amirul Islam @ Nengra Police and (2) Ashraf Ali, who are detained behind the bars since 06.04.2025 (for last 276 days) in connection with Special NDPS Case No. 45/2025, arising out of Mankachar Police Station Case No. 53/2025 under 22(c)/29 of the NDPS Act 1985, pending before the Court of learned Special Judge, South Salmara.

3. The gist of accusation in this case is that on 06.04.2025, one Pooja Hazarika, Sub-Inspector of Police of Mankachar Police Station had filed an FIR before the Officer-in-Charge of Mankachar Police Station, inter-alia, alleging that a secret information has been received through reliable sources regarding storage/trafficking of drugs and selling of Yaba tablets in the house of one Amirul Islam @ Nengra Police (petitioner No. 1). Accordingly, a search team was constituted and the house of Amirul Islam was searched on that day. During search operation, about 6 bundles containing 10 packets (12,000 yaba tablets) were recovered from the house of Amirul Islam (petitioner No. 1). The total weight of the recovered Page No.# 3/13

Yaba tablets was found to be 1311 grams. Later on, on the basis of statement made by Amirul Islam, the petitioner No.2, Ashraf Ali, was also arrested in connection with the aforesaid recovery of drugs.

4. On receipt of the aforesaid FIR, Mankachar Police Station case No. 53/2025 was registered under section 22(c)/29 of the NDPS Act, 1985 and investigation was initiated. After completion of the investigation, the charge sheet was laid against both the above- named petitioner under Section 22(c)/29 of the NDPS Act, 1985. The trial is presently pending at the stage of examination of prosecution's witness.

5. The learned counsel for the petitioners has submitted that the petitioners are seeking bail in this case mainly on the ground of violation of mandatory statutory provisions contained in Section 36 as well as Section 62 of BNSS, 2023. He submits that as per Section 36 (b) of the BNSS, 2023, at the time of arrest of an accused, the arresting authority is required to prepare a memorandum of arrest which shall be attested by at least one witness who is the member of the family of the person arrested or a respectable member of the locality where the arrest is made and same is also to be countersigned by the person arrested.

6. He submits that at the time of preparation of arrest memo in this case, though the signature of the present petitioner was obtained in the arrest memo, however, no signature of at least one witness, who is a member of the family of the arrested person or a respectable member of the locality has been obtained. He, Page No.# 4/13

therefore, submits that the arrest memo has not been prepared as prescribed by Section 36 (b) of the BNSS, 2023. He further submits that Section 62 of the BNSS, 2023 provides that no arrest shall be made except in accordance with the provisions of the BNSS or any other law for the time being in force providing for arrest.

7. The learned counsel for the petitioners submits that the arrest in this case is, therefore, made in contravention of the mandatory statutory provision contained in Section 36 and Section 62 of the BNSS, 2023. He submits that the above statutory requirement flows from Article 21 of the Constitution of India, therefore, the fundamental right of the petitioners under Article 21 of the Constitution of India is violated by its breach. He also submits that such an infringement of fundamental rights would override the embargo of Section 37 of the NDPS Act, 1985 and as such, the petitioners are entitled to get bail in this case. In support of his submissions, the learned counsel for the petitioners has also cited the ruling of the Apex Court, i.e., "D.K. Basu Vs. State of West Bengal "reported in (1997) 1 SCC 416 as well as the ruling of the Apex Court in the case of Directorate of Enforcement (ED) Vs. Subhash Sharma, (Special Leave Petition (Crl.) No. 1136/2023).

8. The learned counsel for the petitioners has also cited the case of "Abu Shama and Another Vs. State of Assam" (order dated 02/12/2025 in BA No. 3636/ 2025) wherein, a Coordinate Bench of this Court by holding the procedural requirement provided in Section 36 of the NDPS Act, 1985 to be mandatory, granted bail to Page No.# 5/13

the petitioner of that case, who was facing accusation of possessing commercial quantity of Contraband.

9. On the other hand, Mr. B. Sarma the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the petitioners on the grounds pleaded by them. He submits that in the instant case huge quantity of contraband was recovered from the possession of petitioner No.1 and there are evidence regarding complicity of petitioner No. 2 in the offence alleged in this case.

10. He submits that in view of the recovery of commercial quantity of contraband in this case, the embargo of Section 37 of the NDPS Act, 1985 would be applicable to this case. He further submits that Section 36 of the BNSS, 2023 is in pari materia with Section 41B of the Code of Criminal Procedure, 1973 which was enacted after issuance of guidelines in this connection by the Apex Court in the case of "D.K. Basu Vs. State of West Bengal" (Supra). He further submits that at the time when the judgment of " D.K. Basu Vs. State of West Bengal" (Supra) was delivered the NDPS Act, 1985 was not in force as it was enacted much later than the date of delivery of the judgment in DK Basu's case.

11. He also submits that apart from the fact that while delivering the judgment in D. K. Basu case, the Apex Court was not considering the provisions of NDPS Act, 1985 as it was not in existence at that point of time, it had only indicated in the judgment that failure to comply with the guidelines issued by the Apex Court in the aforesaid case would invite departmental action against the erring police officer and such officer would also be liable for punishment of Page No.# 6/13

contempt of courts. He submits that as to what would be the impact of violation of such directions on an arrest effected under Special Act like NDPS Act, 1985 was not considered by the court at that point of time.

12. He submits that since the NDPS Act, 1985 is a special Act, hence, under provisions of Section 5 of the BNSS, 2023 it would prevail over the general procedures laid down under BNSS, 2023. He also submits that though the requirement of obtaining the signatures of an independent witness in the arrest memo is a statutory requirement under Section 36 of the BNSS, 2023. However, any violation of the said requirement would not override the embargo laid down by the special statute i.e., under Section 37 of the NDPS Act, 1985. In support of his submission, the learned Additional Public Prosecutor has cited a ruling of the High Court of Calcutta in the case of "Hero Sarkar Vs. Union of India (CRM) (NDPS 445/2025)".

13. He submits that in the aforesaid case the issue involved was similar to the issue involved in this case as to whether the violation of statutory requirement of Section 36 of the BNSS, 2023 or the guidelines issued by the Apex Court in the case of " D.K. Basu Vs. State of West Bengal" (Supra) would result into granting of bail to an accused facing charges for possession of commercial quantity of NDPS Act, 1985 or not. He submits that in the said case the High Court of Calcutta came to a finding that due to the existence of non-obstant clause in Section 37, it gives overriding effect vis-à-vis all provisions of the criminal procedure code (BNSS) and, therefore, Page No.# 7/13

he submits that if a statutory requirement under general law i.e., BNSS is violated, same would not entitle an accused facing charges under NDPS Act, 1985 for possessing commercial quantity of contraband to get bail.

14. The learned Additional Public Prosecutor further submits that the scheme of Section 36 of the BNSS, 2023 regarding obtaining of signature of at least one witness, who is the family member of the arrested person, is not mandatory in as much as Section 36 (c) lays down a duty on the arresting authority to inform the person arrested in the event the memorandum is not attested by member of his family that he has a right to have a relative or friend or any other person named by him to be informed of his arrest. He, therefore, submits that the petitioners are not entitle to get bail in this case.

15. I have considered the submissions made by the learned counsel for both sides. I have also perused the materials available on record including the scanned copy of the Special NDPS Case No. 45/2025. I have also gone through the rulings cited by learned counsel for both the sides.

16. The question to be determined by this Court, while considering the instant bail application, is as to whether any infringement of procedural requirement as laid down under Section 36 of BNSS, 2023 would entitle an accused to get bail in a case involving an offence for possessing commercial quantity of contraband by overriding the embargo laid down under Section 37 of the NDPS Act, 1985, or not.

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17. In the instant case, there is no dispute that the quantity of contraband recovered is of commercial quantity and, therefore, apparently it appears that the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case.

18. Section 36 (b) of the BNSS, 2023 provides that the Police Officer while making arrest shall prepare a memorandum of arrest, which shall be

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

(ii) countersigned by the person arrested.

19. The question is as to whether the aforesaid provision is a mandatory provision or a directory provision. The submission of learned Additional Public Prosecutor that since as per Section 36(c) of BNSS, 2023, the arresting Police Officer is required to inform the person arrested that he has a right to have a relative or a friend or other person named by him to be informed of his arrest in case the memorandum is not attested by his family members, itself shows that the requirement of attestation by one of the family members in the memorandum of arrest is not mandatory, is not a convincing submission and hence, not acceptable to this court.

20. On a careful perusal of the Section 36 (c) of the BNSS, 2023 reveals that the said clause would become operational only if the memorandum of arrest is not attested by one of the family members of the person arrested. However, as per Section 36 (b) (i) Page No.# 9/13

of the BNSS, 2023, apart from family members of the person arrested, any other respectable member of locality where the arrest is made may also attest the memorandum of arrest. Only because of the fact that the Section 36 (c) BNSS, 2023 mandates the arresting Police Officer to inform the arrested person regarding his right to have a relative or a friend or other person named by him to be informed of his arrest does not dilute the requirement of attestation of the memorandum of arrest by at least one witness as provided in Section 36 (b) (i) of the BNSS, 2023.

21. As regards the observation of the Division Bench of the High Court of Kolkata in the case of "Hero Sarkar Vs. Union of India"

(Supra) that as Section 37 of the NDPS Act, 1985 was not in issue before the Apex Court when the Judgment of " D. K. Basu Vs. State of Bengal" was delivered and as Section 37 of the NDPS Act, 1985 starts with a non-obstante clause giving overriding effect to the provisions of said section over other provisions of the Code of Criminal Procedure, 1973, the view of the Kolkata High Court that even if an arrest is made without complying with the provisions of Section 41B of the Code of Criminal Procedure, 1973, it would not per se override the embargo of Section 37 of the NDPS Act, 1985 is not very convincing and this court is unable to persuade itself with the reasoning and logic given by the Kolkata High Court. With due regard to the view taken by the Kolkata High Court in the case of Hero Sarkar Vs. Union of India" (Supra) , this Court beg to differ with the reasoning of the said Court that merely because of the fact that the Section 37 of the NDPS Act, 1985 starts with a Page No.# 10/13

non-obstante clause, it would override all the provisions of Code of Criminal Procedure, 1973. There are certain provisions in BNSS, 2023 which even the non obstante clause of the Section 37 of the NDPS Act, 1985 can not override, namely those provisions which emanates from the part III of the Constitution of India and whose infringement would amount to the violation of the fundamental rights guaranteed by the Constitution of India.

22. The Apex Court in the case of "D. K. Basu Vs. State of Bengal" (Supra), has observed that the guidelines issued by it in the said judgment including the guideline No.2, which corresponds to the requirement of preparing an arrest memo and obtaining signatures of at least one witness thereon apart from same being countersigned by the arrestee flows from Article 21 and 22 (1) of the Constitution and needs to be strictly followed.

23. The aforesaid observation of the Apex code in the D. K. Basu's case leaves no room for doubt that the aforesaid procedural requirement as contained in Section 36 (b) (i) of the BNSS, 2023 has emanated from Article 21 of the Constitution of India and are mandatory in nature. This court is of the view that Section 36 and Section 62 of BNSS, 2023 are only statutory exposition of constitutional norm provided under Article 21 of the Constitution of India, hence, same cannot be overridden merely because of the presence of a non-obstante clause in Section 37 of the NDPS Act, 1985.

24. Section 62 of BNSS, 2023 cast a duty upon the arresting authorities to make arrest strictly according to BNSS. It lays down Page No.# 11/13

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. The arresting authorities, while making an arrest in a case involving an offence under NDPS Act, 1985 cannot defy the mandatory duty cast on them by the aforesaid provision. This is not merely an ornamental provision in BNSS, 2023. It is there to be followed by the arresting authorities.

25. The rigours of Section 37 of the NDPS Act, 1985 would be applicable to a case only if the mandatory procedural requirement of Section 36 of the BNSS, 2023 is followed. In a case involving serious offence of the nature which is involved in the instant case, the arresting police authority has to be more cautious to ensure that all the mandatory procedural requirement of arrest are followed so that the accused does not get benefit of failure on the part of the arresting Police Officer to comply with the mandatory procedural requirement as provided under the BNSS, 2023 as well as the Constitution of India.

26. Since the procedural requirement of attestation of the arrest memo by at least one independent witness has emanated from Article 21 of the Constitution of India, the same is mandatory in nature and same cannot be overridden by another statutory provision like that of Section 37 of the NDPS Act, 1985.

27. This Court is of the opinion that the violation of the procedure prescribed in Section 36 of the BNSS, 2023 would amount to violation of Article 21 of the Constitution of India while effecting an arrest of a person. Hence, in such a case, if such violation is Page No.# 12/13

apparent on record, the embargo of Section 37 of the NDPS Act, 1985 would not be applicable. This Court, therefore, agrees with the observation made by the Coordinate Bench of this Court in Abu Shama and Another Vs. State of Assam (Supra), that the violation of mandatory provision of Section 36 of BNSS, 2023 would override the embargo of Section 37 of the NDPS Act, 1985.

28. In light of the foregoing discussions, this Court is of considered opinion that the petitioners in this case are entitled to get bail as in the instant case, the arrest memo prepared at the time of arrest of both the petitioner was not attested by any independent witness which amounts to violation of the statutory as well as constitutional procedural requirement as discussed above.

29. For the aforesaid reasons, both the above-mentioned petitioners are allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) each with two sureties of like amount subject to the satisfaction of learned Special Judge, South Salmara in Special NDPS Case No. 45/2025 with the following conditions:

i. That the petitioners shall cooperate in the trial of Special NDPS Case No. 45/2025, which is pending in the Trial Court;

ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioners shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade Page No.# 13/13

such person from disclosing such facts before the Trial Court in the trial pending against the present petitioners;

iv. That the petitioners shall provide their contact details including photocopies of their Aadhar Card/Driving License/PAN card and mobile number as well as other contact details before the Trial Court;

v. That the petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall submit their leave address and contact details during such leave before the Trial Court; and

vi. That the petitioners shall not commit any offence while on bail.

30. With the above observation, this bail application is accordingly, disposed of.

31. Let, a copy of this order be furnished to the Chief Secretary, Assam and the Director-General of Police, Assam who shall ensure the compliance of procedural requirement laid down in Section 36(b)(i) of the BNSS, 2023 by all the arresting authorities while arresting any person.

32. Registry to do the needful.

JUDGE

Comparing Assistant