Page No.# 1/7 GAHC010254582025 2025:GAU-AS:17511 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3712/2025 S SEIKHOLUN VAIPHEI AND NAR SO SONTAH THAGKHOSEI VAIPHEI, RO MAKHAO, PS SANGAIKOT, DIST CHURACHANPUR, STATE MANIPUR 2: LUNMINGOU SUANTAK ALIAS GOGO SO THANGNTINAK SUANTAK RO SAHEIPHEI PS SANGAIKOT DIST CHURACHANPUR STATE MANIPU VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR D MEDHI, MR. S SARKAR,MR K THAKUR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER 17.12.2025 Heard Mr. K. Thakur, learned counsel appearing for the accused Page No.# 2/7 applicants and Mr. P. Borthakur, learned Addl. PP for the State of Assam. 2. This is an application under Section 483 of BNSS, 2023 praying for granting bail to the accused applicants in connection with North Guwahati P.S. Case No.84/2025 registered under Section 21©/29 of the NDPS Act. 3. The gist of the allegation as alleged in the FIR dated 03.09.2025 are that after receipt of certain confidential information that contraband narcotics would be transported from Churachandpur (Manipur) to lower Assam District via Kamrup in a Red Hyundai i10 vehicle, the police intercepted the vehicle in Amingaon at 11.30 PM; the Police recovered 74 soap boxes/ packets of heroin (weighing 965 gms without soap box cover) which had been hidden in door panels and dickey of the vehicle. Two carriers persons i.e. the two accused persons were arrested from the spot. 4. On receipt of the FIR, the Police registered North Guwahati P.S. Case No. 84/2025 under Section 21©/29 of the NDPS Act. 5. The learned counsel appearing for the accused applicants submits that while arresting the accused applicants the arresting authority though has issued Arrest Memos but the same are 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 applicants 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 applicants has referred to the case of D. K. Basu, Ashok K Johri-vs- Page No.# 3/7 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. 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 applicants. 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 applicants by not attesting the Arrest Memos by one witness, shall not give right to the accused applicants 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 Page No.# 4/7 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 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 Page No.# 5/7 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 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 Page No.# 6/7 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 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 applicants to be released forthwith on bail on furnishing of bail bond of Rs.1,00,000/ each with two sureties of like nature to the satisfaction of the learned Sessions Judge/ Special Judge (NDPS), Kamrup, Page No.# 7/7 Amingaon subject to the following conditions:- (i) that the accused applicants shall cooperate in the investigation of North Guwahati P.S. Case No. 84/2025 whenever they are called for; (ii) that the accused applicants shall appear before the Investigating Authority as and when required by the Investigating Authority; (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 Investigating Authority; (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 Sessions Judge/ Special Judge (NDPS), Kamrup, Amingaon; (v)that the accused applicants shall not leave the jurisdiction of the Sessions Judge/ Special Judge (NDPS) Kamrup, Amingaon without prior permission of the said Court and when such leave is granted by the said Court, the accused applicants shall submit their addresses and contact details during such leave before the said Court; and (vi) that the accused applicants 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