[Cites 10, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 13 March, 2026
Page No.# 1/5
GAHC010015282026
2026:GAU-AS:3705
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./324/2026
ABUL HUSSAIN
S/O MAJIR UDDIN
R/O VILL- SALEHPUR
P.O. BARALGRAM
P.S. PATHARKANDI
DIST. SRIBHUMI,ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A AHMED, MR A AHMED,MISS. P M AHMED,U U
KHAN,MR. M A CHOUDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
ORDER
13.03.2026
1. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard K.
Baishya, learned Additional Public Prosecutor.
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2. This petition under Section 483 of the BNSS, 2023 has been filed by the
accused-petitioner, namely, Abul Hussain, praying for grant of bail in connection
with Sribhumi P.S. Case No.497/2025 under Sections 21(c)/29 of NDPS
Act. The petitioner was arrested on 27.11.2025
3. As per the allegation in the FIR, information was received regarding
dealing of narcotics near one Baba Hotel. Accordingly, GD No. 5 dated
23/11/25 was made and search operation was conducted. While the police
party was going in the vehicle and reached the spot, one person was
found carrying a bag and upon seeing the police, he fled away. Thereafter,
the abandoned bag was searched and 359 grams of suspected heroin was
found.
4. Mr. Ahmed, learned counsel submits that no persons have been
named in the FIR, though the names of witnesses have been mentioned.
He also contends that notices under 47/48 BNSS have not been complied
with. The third contention of the learned counsel is that the arrest memo
in terms of Section 36(2) does not bear the signature of any witness.
5. The case diary has been received, which indicates that investigation
is not yet completed.
6. Considering the quantity in question and the penal provisions given,
the applicability of Section 37 of the NDPS Act has to be seen. However,
contention has been made regarding non-compliance with notices, first
that aspect has to be seen.
7. I have carefully perused the notices U/S 47/48 BNSS. The notices
have been given bilingually in English and Bengali and upon perusing the
contents, I find that the grounds of arrest indicated are sufficient.
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Therefore, the said contention is not accepted.
8. Learned Additional Public Prosecutor fairly submits that the arrest
memo has been signed by the IO and the arrestee and it does not bear
the signature of any witnesses. From the case diary, I have perused the
said notice and find the contention in this regard by the learned counsel
as well as the learned additional PP to be correct.
9. The learned counsel for the petitioner has placed an order dated
26/11/25 passed by this court in BA 3373/2025 - where in similar
circumstances of compliance with Section 47/48 BNSS, but non-
compliance with 36(2) BNSS - bail was given after referring to the
principles in D.K Basu v. State of West Bengal, AIR 1997 SC 610.
10. Before proceeding further, Section 36(b) of BNSS may be
reproduced herein below:
"Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
outlines the Procedure of arrest and duties of the officer
making an arrest. It mandates that police officers must bear clear
identification, prepare a signed arrest memo, and inform the
accused of their rights, including the right to inform a friend or
relative about the arrest, largely reflecting and strengthening"
11. Thus, it is clearly indicated that the memorandum of arrest has to
be attested by at least one witness. These requirements also follow from
the constitutional provisions pertaining to liberty incorporated inter alia in
Articles 21 and 22(1) of the Constitution of India, as has also been held in
D. K. Basu (supra) in paragraph 38, which is reproduced below:
"38. These requirements are in addition to the constitutional and
statutory safeguards and do not detract from various other
directions given by the courts from time to time in connection with
the safeguarding of the rights and dignity of the arrestee."
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12. Consequently, despite the serious nature of the alleged offenses;
applicability of applicability of Section 37 per se; the notices U/S 47/48
BNSS also being found in order - due to the infirmity in the notice under
Section 36(b) BNSS and its linkage with constitutional provisions as
mandated in D. K. Basu (supra) - I am of the considered view that like in
the order passed in BA No. 3373/2025, bail is also required to be given in
the instant case.
13. Accordingly, in the given facts and circumstances, the accused person is hereby allowed
to go on bail of Rs. 50,000/- with one suitable surety of like amount to the
satisfaction of learned concerned court, subject to the following conditions that the
petitioner:
(a) shall cooperate with the remaining investigation.
(b) shall not hamper or tamper with evidence.
(c) shall not indulge in activity of consuming or paddling of illegal drugs.
In case of violation of any bail conditions, bail will be liable to be
cancelled.
14. It is necessary to observe that in all cases, arrest of a person should
be made only if it is really necessary. Nevertheless, in serious offenses
wherever arrests are genuinely needed, the procedural aspect of arrest
has to be properly complied by the IO, including the aspect of notices
under Section 36/47/48 BNSS. With regard to these notices, the IO is
expected to be aware of the latest position of law in this regard. In serious
cases, where arrest is genuinely needed for the purpose of effective
investigation, the IO has to take steps to ensure that such arrests do not
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become fatally inferior, due to procedural mistakes.
15. Accordingly, this bail application stands allowed and disposed of.
16. A copy of this Bail order shall be sent to the learned Superintendent
of Police, Sribhumi for kind perusal.
17. Return back the case diary.
JUDGE
Comparing Assistant
