Page No.# 1/10 GAHC040009232026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/58/2026 Anubala Brahma Wife of Laben Brahma, resident of Bahadur Adarsha Gaon, PO Mazbat, PS Mazbat, Udalguri District, Assam 784507 VERSUS The State of AP represented by the PP of AP Advocate for the Petitioner : Nayan Jyoti Daimari, Advocate for the Respondent : P P of AP, BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 18-08-2026 Heard Mr. N. J. Daimari, learned counsel for the applicant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for release of the accused person, namely, Somdon @ Page No.# 2/10 Swmdwn Brahma, on bail in connection with Balijan P.S. Case No. 29/2025, corresponding to G.R. Case No. 10/2025 and NDPS Case No. 21/2026, under Sections 20(c)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, pending before the learned Special Judge (NDPS), Yupia, Arunachal Pradesh. 3. The accused was arrested on 23.10.2025 and since then he has been in judicial custody. The present application is the third bail application filed on behalf of the accused. Earlier, two bail applications, being B.A. No. 14/2026 and B.A. No. 30/2026, were rejected by this Court vide orders dated 29.04.2026 and 24.02.2026 respectively. 4. The case emanates from an FIR lodged by SI (SG) Kigam Tara on 22.10.2025 to the effect that on the same day, at around 2000 hours, on receipt of reliable information that one Maruti Suzuki Alto car bearing Registration No. AR-01D-2687 was carrying suspected contraband Cannabis (Ganja) from Taraso towards Balijan, a police team from Balijan Police Station intercepted the said vehicle at Upper Tubung Bridge Point at about 2030 hours. Upon search, 9 (nine) plastic bags containing suspected contraband Cannabis (Ganja) were allegedly recovered from the possession of the accused Somdon Brahma and co-accused Sangarag Narzary. Accordingly, Balijan P.S. Case No. 29/2025 was registered under Sections 20(c)/25/29 of the NDPS Act. 5. It is seen from the record that the charge-sheet has already been filed vide Charge-sheet No. 01/2026 dated 06.02.2026 and charges have also been framed. This Court, while considering the earlier bail application, had taken note of the fact that the trial had commenced, 9 (nine) witnesses had been cited and the case was at the stage of recording of evidence of prosecution witnesses. This Court had also taken note of the fact that the case involved commercial Page No.# 3/10 quantity, thereby attracting the rigours of Section 37 of the NDPS Act, and that the materials available on record disclosed prima facie incriminating materials against the accused. Accordingly, the prayer for bail was rejected. 6. By filing the present application, the applicant has taken certain new grounds and subsequent developments, particularly with regard to the alleged non-compliance with the mandatory provisions contained in Sections 36, 47 and 48 of the BNSS, 2023 and the consequent violation of the fundamental right guaranteed under Article 22(1) of the Constitution of India. 7. Learned counsel for the applicant submits that at the time of arrest, no Memorandum of Arrest as contemplated under Section 36 of the BNSS, 2023 was served upon the accused. It is submitted that instead, a joint Arrest-cum- Inspection Memo was prepared and served upon the accused, which was not read over or explained to him in a language understood by him. It is further submitted that the said memo does not contain the signature or attestation of a witness as mandated under Section 36 of the BNSS, 2023. It is submitted that the person shown as witness/relative, namely, Junali Narzary, is the wife of the co-accused Sangarag Narzary and is not a member of the family of the accused. It is submitted that the said document was in English and the accused as well as the witness were not conversant with English and had merely affixed their thumb impressions. 8. Learned counsel submits that there was also non-compliance with Sections 47 and 48 of the BNSS, 2023, inasmuch as the grounds of arrest and the information regarding the arrest were not duly communicated to the accused and his family members were not informed in accordance with law. It is submitted that such non-compliance amounts to violation of Article 22(1) of the Constitution of India. Learned counsel places reliance upon the judgment of the Page No.# 4/10 Hon'ble Supreme Court in Vihaan Kumar v. State of Haryana, 2025 OnLine SC 269, as well as the judgment of the Hon'ble Supreme Court in Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, in support of his submissions regarding the mandatory requirements relating to arrest and communication of the grounds of arrest. 9. Learned counsel for the applicant has further placed reliance upon the decision of this Court in Shri Bijay Gupta v. The NCB, Guwahati Zonal Unit, Bail Application No. 560/2026, decided on 31.03.2026, wherein, in the context of an arrest made in a case involving commercial quantity under the NDPS Act, this Court, upon considering the mandate contained in Section 36 read with Section 62 of the BNSS, 2023, observed that the requirement of attestation of the Memorandum of Arrest by at least one witness is mandatory. It was further observed therein that non-compliance with the mandatory procedure prescribed for arrest would render the arrest illegal and that, in such circumstances, the rigours of Section 37 of the NDPS Act would not come into play, as the initial arrest itself stood vitiated. Learned counsel submits that the facts of the present case, particularly the absence of a duly attested Memorandum of Arrest under Section 36 of the BNSS, 2023, require consideration in the light of the aforesaid decision. 10. Learned counsel further submits that the constitutional protections contained in Article 22(1) of the Constitution of India cannot be treated as a mere technical requirement and that compliance with the statutory safeguards governing arrest is mandatory. It is submitted that the grounds urged in the present bail application are fresh and distinct grounds which were not considered on the earlier occasions. Learned counsel therefore submits that the rejection of the earlier bail applications on merits would not operate as a bar to Page No.# 5/10 consideration of the present application on the basis of new and distinct grounds. In support of the aforesaid submission, learned counsel has relied upon the judgment of the Hon'ble Supreme Court in Babu Singh and Others v. State of Uttar Pradesh, (1978) 1 SCC 579, wherein it has been held that an earlier order refusing bail does not necessarily preclude consideration of a subsequent bail application on the basis of further developments, additional materials or different considerations. 11. Per contra, Mr. T. Ete, learned Additional Public Prosecutor, submits that the earlier bail applications were rejected by this Court on merits and the orders passed therein have attained finality. He submits that the accused had sufficient opportunity to raise the question relating to the manner of his arrest and the alleged non-compliance with the provisions of the BNSS, 2023, but the same was not raised at the appropriate stage. 12. Learned Additional Public Prosecutor further submits that the reliance placed by learned counsel for the applicant upon the decision of this Court in Shri Bijay Gupta (supra) would not advance the case of the applicant, as the issue relating to the consequence of non-compliance with Section 36 of the BNSS, 2023, has subsequently been considered by the Division Bench of this Court in Injamamul Hoque alias Injamul Hoque v. State of Assam, in Bail Appln. No. 1239/2026 and connected matters, vide order dated 12.08.2026. It is submitted that the Division Bench has held that though Section 36 is mandatory, its non-compliance by itself does not automatically render the arrest void or entitle the accused to bail, and the effect of such breach has to be examined in the facts and circumstances of each case. He further submits that the present case involves commercial quantity and the twin conditions under Section 37 of the NDPS Act are required to be satisfied. Page No.# 6/10 13. Learned Additional Public Prosecutor has also placed reliance upon the judgment of the Hon'ble Supreme Court in State of Meghalaya v. Sonam Raghuvanshi @ Bitti @ Bittu, 2026 SCC OnLine SC 1392, wherein the Hon'ble Supreme Court distinguished between non-service of the grounds of arrest and non-furnishing of adequate reasons therein. It was observed that while non-service of grounds of arrest may, in an appropriate case, vitiate the arrest, in cases where the grounds have been furnished but their adequacy is questioned, the prejudice caused to the accused has to be examined. It was further clarified that where earlier bail applications had been considered and rejected on merits, the accused cannot thereafter raise the issue relating to the grounds of arrest as a fresh ground for bail. Learned Additional Public Prosecutor submits that the said judgment would apply to the present case, particularly as the earlier bail applications of the applicant had been rejected on merits. 14. Learned Additional Public Prosecutor further submits that the present case involves commercial quantity and, therefore, the rigours of Section 37 of the NDPS Act are attracted. Relying upon the judgment of the Hon'ble Supreme Court in State of Punjab v. Balraj Singh @ Billa, 2026 SCC OnLine SC 1058, he submits that in a case involving commercial quantity, consideration of the twin conditions prescribed under Section 37(1)(b)(ii) of the NDPS Act is mandatory and the same cannot be dispensed with merely on the ground of prolonged incarceration or pendency of the trial. He submits that the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. 15. Learned Additional Public Prosecutor further submits that mere filing of the Page No.# 7/10 charge-sheet or the period of detention would not, by itself, entitle the accused to bail when prima facie incriminating materials are available against him. He submits that the trial has already commenced and, as noticed by this Court while considering the earlier bail application, the trial was proceeding at a proper pace. He therefore submits that there is no sufficient change in circumstance warranting reconsideration of the earlier orders of rejection and prays for dismissal of the present bail application. 16. I have considered the submissions made by learned counsel appearing for the parties and have also perused the materials available on record, including the TCR placed before this Court. 17. As noticed above, the accused was arrested on 23.10.2025 and has remained in custody since then. This Court had earlier considered the prayer for bail of the accused in B.A. No. 30/2026 on merits and had taken note of the prima facie materials against the accused as well as the role attributed to him along with the co-accused. It was also noticed that the charge-sheet had been filed, charges had been framed and the trial had commenced. At that stage, 9 (nine) witnesses had been cited and the trial appeared to be proceeding at a proper pace. Having regard to the nature of the accusation, the alleged recovery involving commercial quantity and the applicability of the rigours of Section 37 of the NDPS Act, this Court was not inclined to grant bail to the accused. 18. The present application is being considered in the light of the subsequent developments. While rejecting the earlier bail application, this Court had, inter alia, taken note of the fact that the trial had commenced and was proceeding at a proper pace. The subsequent proceedings, however, indicate that there has not been substantial progress in the recording of prosecution evidence. The position which prevailed at the time of rejection of the earlier bail application Page No.# 8/10 has, therefore, undergone a change. 19. The record shows that the applicant has remained in custody since 23.10.2025 and has, by now, undergone custody for nearly ten months. It further appears from the record that on 24.06.2026, the FSL expert, namely, SI Devi, had appeared virtually, but her evidence could not be recorded on that date on account of a proposed meeting scheduled at 4:00 p.m. Thereafter, summons were issued to three witnesses fixing 12.08.2026 for their appearance. Except for the aforesaid proceedings, no substantial progress in the recording of prosecution evidence is reflected from the record placed before this Court. 20. There is also nothing on record to indicate that the delay in the progress of the trial is attributable to the applicant. The applicant has continued to remain in custody, while the recording of prosecution evidence has not substantially progressed. Thus, the circumstance which was taken into consideration by this Court at the time of rejection of the earlier bail application, namely, that the trial was proceeding at a proper pace, does not appear to exist in the same manner at present. 21. This Court is conscious of the fact that the case involves commercial quantity and that the restrictions contained in Section 37 of the NDPS Act would be attracted. The seriousness of the allegation and the statutory restrictions governing grant of bail have been kept in view. At the same time, the period of custody already undergone and the subsequent progress of the trial are also relevant circumstances which cannot be overlooked while considering whether the applicant should continue in custody. 22. The earlier bail applications were considered on the facts and Page No.# 9/10 circumstances then prevailing. The subsequent lack of substantial progress in the trial, coupled with the period of custody undergone by the applicant, constitutes a change in circumstance warranting reconsideration of the prayer for bail. The present consideration is, therefore, not on the same grounds which were considered earlier, but on account of the subsequent developments in the trial. 23. Insofar as the alleged non-compliance with Sections 36, 47 and 48 of the BNSS, 2023 is concerned, this Court does not find it necessary to enter into the said question for the purpose of deciding the present bail application. In view of the decision of the Division Bench in Injamamul Hoque alias Injamul Hoque (Supra), wherein it has been held that though the requirements of Section 36 are mandatory, non-compliance thereof, by itself and in isolation, would not automatically render the arrest void or non est, the effect of such non- compliance has to be examined having regard to the totality of the circumstances, including the nature of the breach and the prejudice, if any, caused to the accused. In the present case, having regard to the subsequent development in the trial and the period of incarceration already undergone by the applicant, this Court considers it appropriate to examine the prayer for bail on those grounds rather than on the alleged irregularities in the arrest. 24. Taking into consideration the period of custody already undergone by the applicant, the fact that the charge-sheet has been filed and charges have been framed and the fact that there has been no substantial progress in the recording of prosecution evidence after the earlier rejection of bail, this Court is of the view that there has been a material change in circumstance. The record does not indicate that the delay in the progress of the trial is attributable to the applicant. Though the provisions of Section 37 of the NDPS Act would be Page No.# 10/10 attracted, the continued detention of the applicant for an indefinite period, when the trial has not progressed substantially, cannot be justified solely on the basis of the nature of the accusation. In the facts and circumstances of the present case, this Court is therefore of the view that further incarceration of the applicant is not warranted at this stage. 25. In view of the aforesaid discussions and findings, it is directed that the accused, namely, Somdon @ Swmdwn Brahma, be released on bail on furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of like amount to the satisfaction of the learned Special Judge (NDPS), Yupia, Arunachal Pradesh, subject to the following conditions: (i). The accused shall appear before the learned Trial Court as and when required during the trial of the case; (ii). The accused 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; (iii). The accused shall provide details of his Aadhar Card, Driving License, PAN-Card and Passport, if available, to the learned Special Judge (NDPS), Yupia, Arunachal Pradesh; 26. Accordingly, this bail application stands allowed and disposed of. JUDGE Comparing Assistant