Page No.# 1/7 GAHC010263372025 2025:GAU-AS:17512 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3886/2025 IMDADUL HOQUE @ IMTADUL HOQUE S/O- MOTIOR RAHMAN, R/O- VILL- KABAITARY PT V, P.O.- JOGIGHOPA,P.S. JOGIGHOPA,DIST.- BONGAIGAON, ASSAM, PIN- 783382 VERSUS THE STATE OF ASSAM REPRESENTED BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER 17.12.2025 Heard Mr. M. R. Khandakar, learned counsel appearing for the accused applicant and Mr. P. Borthakur, learned Addl. PP appearing for the State. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused applicant in connection with Goalpara P.S. Page No.# 2/7 Case No.158/2025 registered under Section 61(2)/123 of BNSS, 2023 read with Sections 21(b)/22(c)/25/29 of the NDPS Act. 3. The gist of the case as narrated in the FIR dated 14.08.2025 is that during naka checking suspected Heroin weighing 6.88 gms and 514 Tramadal Capsules weighing approximately 318 gms as well as 172 Nitrazepam Tablets weighing 92.8 gms were recovered from the dashboard of the car driven by the accused applicant. 4. On receipt of the FIR, the Police registered Goalpara P.S. Case No. 158/2025 under Section 61(2)/123 of the BNSS read with Section 21(b)/22(c)/25/29 of NDPS Act. 5. The learned counsel appearing for the accused applicant submits that while arresting the accused applicants 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 applicants should be released on bail on that ground only. 6. 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 the arrest and such Memo shall be attested by at least one witness. Page No.# 3/7 7. On the other hand, the learned Addl. PP 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 applicant. 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 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. To support his contention that section 37 shall be squarely applicable in the instant case, the learned Addl. PP 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. 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. 9. 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 Page No.# 4/7 with. 10. In this connection, Section 36 and Section 62 of the BNSS being relevant 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”. 11. 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 Page No.# 5/7 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 Arrest Memo himself. 12. 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. 13. 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. 14. In the instant case in hand, it is seen that the Arrest Memo does not Page No.# 6/7 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. 15. 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 the initial arrest itself is rendered illegal due to violation of Section 36 of the BNSS, 2023. 16. 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 applicants whereby curtailing their fundamental rights guarranted under Article 21 and 22 of the Constitution of India. 17. The case law that has been cited by the learned Addl. PP is not found applicable in the instant case in hand. 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/ with two sureties of like nature to the satisfaction of the learned Special Judge No.2, Goalpara subject to the following conditions:- (i) that the accused applicant shall cooperate in the investigation of Goalpara P.S. Case No. 158/2025 whenever he is called for; (ii) that the accused applicant shall appear before the Investigating Page No.# 7/7 Authority as and when required by the Investigating Authority; (iii)that the accused applicant 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 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 Special Judge No.2,Goalpara; (v)that the accused applicant shall not leave the jurisdiction of the Special Judge No. 2, Goalpara 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 (vi) that the accused applicant shall not commit any offence while on bail. In view of the aforesaid directions, this Bail Application stands disposed of, as allowed. JUDGE Comparing Assistant