GAHC010066052026 2026:GAU-AS:10587 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./949/2026 REUBEN KAMLALSON AND ANR S/O NEKMINLUN, R/O MUOLVAIPHEI, P.O. AND P.S. LAMKA, DIST. CHURACHANDPUR, MANIPUR, PIN-795128 2: LALROHLUN S/O LATE DUOILO R/O VILL-313 SESAWNG II P.O. SESAWNG P.S. DAWNGKAWN DIST. AIZAWL MIZORAM-796017 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, DIRECTORATE OF REVENUE INTELIGENCE (DRI). Advocate for the Petitioner : MR. M BISWAS, MS. A K CHOPHI,A GHOSAL,J SINGPHO Advocate for the Respondent : SC, DRI, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 31-07-2026 1. Heard Mr. M. Biswas, the learned counsel for the petitioners. Also heard Mr. D. Bora, the learned Senior Standing Counsel, DRI. 2. In pursuant to the order dated 17.07.2026, the petitioners have filed an additional affidavit bringing certain more facts on record. The DRI has also filed written objection against the said affidavit. 3. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the petitioners, namely, 1. Reuben Kamlalson, 2. Lalrohlun, who are detained behind the bars since 18.02.2025 (for the last 01 year 05 months 13 days) in connection with NDPS Case No. 200 of 2025 pending in the court of Special Judge, NDPS Courtu/s 21(c)/29 of the NDPS Act, 1985. 4. The gist of the accusation in this case is that on receipt of an information through reliable sources a search operation was conducted and vehicle bearing Registration No. MZ-01AC-8843 was intercepted near Khanapara Flyover, Guwahati, wherein, both the petitioners were found to be the occupants. On search of the said vehicle, 739.19 grams of suspected heroin was recovered from the possession of the present petitioners. 5. It is pertinent to mention herein that on an earlier occasion also, the petitioners approached this court seeking bail on the ground of violation of provisions contained under Sections 47 and 48 of BNSS, 2023. However, by order dated 25.07.2025, passed in the Bail Application No. 198/2022, the prayer for bail was rejected by this court holding that there was no such violation. This time the petitioners have approached this court with some new grounds which were not taken in their earlier bail application. 6. Mr. M. Biswas, the learned counsel for the petitioners submits that the prosecution side has violated Fundamental Rights of the petitioners under Article 22(2) of the Constitution of India as they were not produced, after their arrest before the nearest Magistrate within 24 hours. He submits that the petitioners were in fact apprehended at about 1:00 AM on 18.02.2025. However, they were produced before the learned Magistrate after 1:00 PM on 19.02.2025. He submits that the time of arrest in the arrest memo, i.e., 8:30 PM on 18.02.2025 has been wrongly shown. 7. The learned counsel for the petitioners further submits that the prosecution side/arresting authority also violated the provisions contained in Section 36(b)(i) of the BNSS, 2023 in as much as the witnesses whose signatures were obtained in the arrest memo were not the residents of the locality where the arrest was made. He submits that the arrest of the petitioners was made at Khanapara Flyover, Guwahati, however, the witnesses whose signatures were obtained in the arrest memo were residents of Lalganesh of Guwahati and of Marajana in District Kamrup respectively. He submits that none of the witnesses were the resident of the area from where the arrest was made in this case. He submits that the requirement contained in Section 36(b)(i) of BNSS, 2023 is of obtaining attestation by atleast one witness, who is a respectable person of the locality from where the arrest was made flows from Article 21 and 22 (1) of the Constitution of India and need to be strictly followed. He submits that any violation of the said provisions would amount to violation of Fundamental Rights guaranteed under Article 21 and 22 of the Constitution of India and in such a case, the petitioners would be entitled to get bail. 8. He further submits that the petitioners are languishing behind the bars for last more than 1 year 5 months, however, not even single prosecution witnesses have been examined by the prosecution side and there is unlikelihood of the trial culminating soon. As such, he submits that on the ground of prolonged incarceration, the petitioners are entitled to get bail. 9. In support of his submissions, the learned counsel for the petitioners has cited following rulings: - i. “Niranjan Singh &Anr. Vs. Prabhakar Rajaram Kharote&Anr” reported in “(1980) 2 SCC 559” ; ii. “State of Haryana &Ors Vs. Dinesh Kumar” reported in “(2008) 3 SCC 222”; iii.“Directorate of Enforcement Vs. Subash Sharma” reported in “(2025) SCC OnLine 240” iv.“Kiran Singha VS State of Assam” (B.A. No. 929/2026) v. “Bittu Kumar -Vs- State of Assam”(BA 1662/2025) 10. The learned counsel for the petitioners therefore, submits that the petitioners may be allowed to go on bail on any condition which may be imposed by this court. He submits that the petitioners shall co- operate in the investigation. 11. On the other hand, Mr. D. Bora, the learned Senior Standing Counsel, DRI has opposed the prayer for grant of bail to the present petitioners on the ground that no violation of fundamental rights has been occasioned in this case. He submits that the arrest memo prepared at the time of arrest of the petitioners clearly indicate that the petitioners were arrested on 18.02.2025 at about 8:30 PM at DRI Office, Guwahati and were produced before the court on 19.02.2025, i.e., well within the time prescribed by law. He submits that though the petitioners were intercepted near Khanapara Flyover,Guwahati, Kamrup (M), the petitioners were requested to accompany the DRI officials to the DRI Office and as per their request, they accompanied them to DRI Office on their own. 12. He submits that the accused persons/the present petitioners accompanied them to DRI Office on their own volition and they were arrested only at 8:30 PM as apparent from the averments made in the final complaint filed before the court. 13. The learned Senior Standing Counsel, DRI has also submitted that there has been no violation of requirement of Section 36 of BNSS, 2023 in the instant case.He submits that in the instant case the arrest memos were duly prepared as per law at the time of arrest of the present petitioners. He submits that as required under law the signature of not only of one but two attesting witnesses were obtained on the arrest memo. He submits that it is not the requirement of the law that the attesting witness shall have to be the resident of locality. 14. He submits that during search operation of seizure of prohibited contraband more specifically the narcotic drugs and psychotropic substance, it is not always easy to get a willing witness to attest the arrest memo in case of an arrest in connection with such cases. He submits that it is only after lot of persuasion the DRI officials were able to get attesting witnesses, who were available at the spot at the time when the arrest was made. As such he submits that there has been compliance of the statutory provisions contained in Section 36 (b) (i) of BNSS in the instant case. 15. He submits that in the instant case, the recovery of 739.19 grams of heroin is there which is a commercial quantity of contraband and the estimated value in the market would be more than 5 crore 17 lakhs and would have spoiled the life of lot of promising youth of this country. As such, he prays for rejecting the prayer for bail of both the petitioners. 16. I have considered the submissions made by learned counsel for both sides and have gone through the materials on record.I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions. 17. Both the petitioners, on an earlier occasion also, had approached this court praying for grant of bail in the aforementioned NDPS case. However, by order dated 25.07.2025, passed in bail application No. 1982/2025, the prayer for bail was rejected by this court. 18. While rejecting the prayer for bail, this court categorically held that the petitioner has failed to establish any violation of the mandatory requirement contained in Section 47 as well as Section 48 of the BNSS and as such no violation of Article 22 of the Constitution of India could be shown by the petitioners. The finding of this court to the effect that at the time of arrest of the petitioners there has been no violation of the constitutional mandate under Article 22 of the Constitution of India has not been put to any challenge before any higher court by the petitioners. They have again taken the same ground of violation of Section 47 as well as Section 48 of the BNSS in the instant bail application also. Since the said plea was already decided by this court in its order dated 25.07.2025, passed in Bail Application No. 1982/2025, this court cannot reopen this said issue again and come to a different finding. 19. As regards the plea of the learned counsel for the petitioners that the petitioners were arrested at 1:00 AM on 18.06.2026, there has been no such averment in the bail application or in the additional affidavit filed by the petitioners rather the petitioners have not taken any specific plea in the bail application or in the additional affidavit filed by them that the time stated in the memo of appeal of their arrest is not correct. Apart from the oral submission of the learned counsel for the petitioners, nothing is there on record to indicate that the petitioners have ever agitated regarding the correctness of the time of their arrest shown in the memo of appeal. Under such circumstances, the plea taken by the petitioners that they were produced before the Magistrate after 24 hours of their arrest loses credibility and as such, same is not relied upon by this court. 20. As regards the submission of the learned counsel for the petitioners that while preparing the arrest memo after the arrest of the petitioners, the mandate of Section 36 (b)(i) of BNSS has not been followed by the arresting authorities, it appears that in the arrest memo, two witnesses have put their signatures in the arrest memo, namely, Shri S Banerjee as well as Shri Sirajul Haque. The plea of the learned counsel for the petitioners that as both the attesting witnesses were not the residents of the locality where the arrest was made, therefore,there has been non-compliance of Section 36 (b)(i)of the BNSS 2023 also does not appear to be very convincing. 21. The statutory requirement of having at least one attesting witness in the arrest memo who is either a family member of the arrested person or a respectable member of locality where the arrest is made is to be interpreted by giving a purposive interpretation to the said provision.The provisions contained in Section 36 (b)(i) of the BNSS, 2023 corresponds to Section 41B (b)(i) of the Code of Criminal Procedure, 1973 which is again based on the guidelines of the apex court in the case of “D. K. Basu Vs. State of West Bengal”. The word “respectable” used in the said provision, in the considered opinion of this court does not imply high financial standing or social prominence or any elite status, rather it denotes an unbiased, independent and trustworthy person who could testify later on regarding the circumstances of arrest, time of arrest and place of arrest before the court if such a requirement is felt necessary. In this context the phrase “member of locality” does not necessarily means that the person should reside in the locality where the arrest has been made, rather it could mean that the person should either reside or work or physically present in the immediate vicinity or neighborhood where the arrest was actually made and is willing to testify regarding the facts and circumstances of the arrest. 22. The question as to whether, in the instant case,the attesting witnesses were present at the place of arrest in the normal course of their conduct or were arranged by police to take their signatures on the arrest memo after the fact of arrest, can be verified only upon examination of such witnesses. However, merely because of the fact that the permanent addresses of the attesting witnesses of the arrest memo is in a different place than that of the place of arrest, in itself may not be a ground to disbelieve the fact that they were present in their normal course of conduct at the place where the arrest has been made. As such, this court is of considered opinion that at this stage, it cannot be said that there has been a violation of the provisions contained in Section 36 (b)(i) of the BNSS 2023 in this case. 23. So far as the contention of the petitioners regarding prolonged incarceration is concerned, though this court is of considered opinion that prolong incarceration overrides the embargo of Section 37 of the NDPS Act 1985, however, as to what period may be considered as long enough to give benefit of prolonged incarceration so that it overrides the embargo of Section 37 of the NDPS Act is concerned depends upon facts of each case. In the instant case considering the quantity of heroin seized in this case which, in the considered opinion of this court is a huge quantity, the period undergone by the petitioners under detention may not be regarded as long enough so as to override the embargo of Section 37 of the NDPS Act, 1985 at this stage. 24. In view of the discussions made and reasons stated in the foregoing paragraphs, this court of is of the considered opinion that the embargo of Section 37 of the NDPS Act prevails at this stage in the instant case and as such, the petitioners are not entitled to get bail at this stage. 25. The trial court is, however, directed to make all endeavour to expedite the trial and to culminate it as soon as possible. 26. Accordingly, this bail application is dismissed. 27. Send back the records of the NDPS Case No. 200 of 2025 with all connected files to the trial court, along with a copy of this order. JUDGE Comparing Assistant