Page No.# 1/5 GAHC010245512025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3636/2025 ABU SHAMA AND ANR S/O KORAN ALI R/O VILL SOLIYA, BORO RAVATARY, PS SOUTH SALMARA, DIST DHUBRI, ASSAM, PIN 783127 2: NUR ISLAM S/O CHANDE SK. R/O VILL SOLIYA BORO RAVATARY PS SOUTH SALMARA DIST DHUBRI ASSAM PIN 78312 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. SANU HUSSAIN, MS P BARMAN,MS J A RAHMAN,MR K THAKUR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER 02.12.2025 Heard Mr. S. Hussain, learned counsel appearing for the accused - Page No.# 2/5 applicants. Also heard Mr. K.K. Parashar, learned Addl. Public Prosecutor for the State. 2. This is an application under Section 483 of the BNSS, 2023 granting bail to the accused – applicants, namely, (i) Abu Shama and (ii) Nur Islam in connection with Special NDPS Case No. 30/2025 arising out of South Salmara Police Station Case No. 53/2025 under Section 21(b)/22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act pending before the learned Special Judge (NDPS) cum District and Sessions, South Salmara. 3. The gist of the case is that an FIR was lodged on 27.05.2025 wherein it was alleged that on receipt of some credible intelligence report regarding illegal possession and distribution of psychotropic substances by the accused -applicants, the police has conducted a body search on the accused applicants and recovered and seized one soap case containing 38 grams of a substance suspected to be Heroin (12 grams without the soap case), 16 packets of Yaba tablets which contain 200 tablets each, totalling 3,200 tablets with a net weight of 326 grams and certain other materials like the mobile phone etc. 4. On receipt of the FIR, the South Salmara P.S. Case No. 53/2025 under Section 21(b)/22(c)/29 of NDPS Act was registered against the accused - applicants. The accused - applicants were arrested on the same date, i.e., 27.05.2025 and since then they have been put behind the bars. 5. The learned counsel appearing for the accused - applicants submits that while arresting the accused - applicants, the mandate of Section 36 of BNSS was totally flouted by the arresting authority and on that ground only, the arrest being illegal, the accused - applicants should be granted bail. 6. The learned Addl. Public Prosecutor appearing for the State submits that Page No.# 3/5 huge quantity of Narcotics was recovered from the conscious possession of the accused - applicants. He further submits that the mandates of Section 47 and 48 of BNSS, 2023 have duly been complied with by the Investigating Agency. Therefore, he submits that though, it seems, that there is non-compliance of the Section 36 of the BNSS, the accused -applicants should not be granted bail at this stage. 7. Considering the submissions made by the learned counsel appearing for the respective parties, this Court has also perused the TCR submitted before this Court. While perusing the Arrest Memo made under Section 36 of BNSS, this Court has seen that there was an error committed by the Arresting Authority at the time of arrest. In the Arrest Memo, the Section 36 of the BNSS clearly mandates that while arresting the accused - applicants, the officer must prepare a formal record of the arrest, which must be attested by at least one witness, such as a relative or local resident. 8. The ratio laid down in the case of D.K. Basu, Ashok K. Johri vs. State of West Bengal, reported in 1997 (1) SCC 416 clearly lays down that the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear in identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register and that the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness. 9. In view of the aforesaid ratio laid down by the Hon’ble Apex Court which actually deals with the personal liberty granted under Article 21 and 22(1) of the constitution of India, this Court is of the considered opinion that there is a violation of the Section 36 of BNSS, which is mandatory in nature and that Page No.# 4/5 makes the procedure of arrest as illegal providing the right to the accused - applicants to be released on bail, though the contraband materials so seized is much more than commercial quantity. 10. 10. In view of the aforesaid finding, this Court directs that accused - applicants to be released on bail on furnishing a bail bond of Rs. 1,00,000/- (Rupees one lakh) each with two sureties of like nature to the satisfaction of the learned Special Judge, NDPS, South Salmara subject to the following conditions- I. That the accused applicants shall co-operate in the trial of Special NDPS Case No. 30/2025 arising out of South Salmara Police Station Case No. 53/2025 under Section 21(b)/22(c)/29 of the NDPS Act; II. That the accused applicants shall appear before the Trial Court as and when so required by the Trial Court; III. That the accused applicants 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 such person from disclosing such facts before the Trial Court in the trial pending against the present accused applicants; IV. That the accused applicants shall provide their contact details including photocopies of their Aadhar Cards or Driving Licenses or PAN cards as well as, mobile numbers, and other contact details before the Trial Court; V. That the accused applicants 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 accused applicants shall submit their address and contact details during such leave before the Trial Court; and VI. That the accused applicants shall not commit any offence while on bail. Page No.# 5/5 11. In view of the aforesaid finding, the instant bail application stands disposed of. JUDGE Comparing Assistant