Page No.# 1/4 GAHC010002072026 2026:GAU-AS:4925 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./39/2026 BIDYUT BIKASH KALITA SON OF LATE JYOWTISH KALITA RESIDENT OF CHAPLAI PT.I, BAGDOBA, P.S. DHUPDHARA DIST. GOALPARA, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. C K NATH, MR. AJAY SARMA,MR. S MUNIR Advocate for the Respondent : PP, ASSAM, Page No.# 2/4 BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 02.04.2026 Heard Mr. S. Munir, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Addl. PP for the State of Assam. 2. This is an application filed under Section 483 of BNSS, 2023 praying for granting regular bail to the accused/petitioner in connection with Dhupdhara P.S Case No. 58/2025 registered under Section 61(1)/123 of BNS r/w Section 22(c)/29 of the NDPS Act, 1985. 3. As per the FIR, the police conducted a Naka Checking on 09.12.25 at Dhupdhara Dhainbari Road, upon receipt of prior information regarding transportation of contraband drugs, and in the course of such Naka Checking, one person coming on a bike was apprehended. Upon search of the bike, a commercial quantity of triprolidine hydrochloride and codeine phosphate syrup amounting to 100 bottles of 100 ml each was recovered. One person, namely Nilchan Ali, was apprehended. Upon his interrogation, the present petitioner, Vikas Kalita, was arrested. It was revealed by the first arrested accused, Nilchan Ali, that the petitioner is the supplier of the contraband. 4. It is submitted on behalf of the petitioner that there has been a violation of Section 36 BNSS, as there is no signature of any witness on the arrest memo. Furthermore, the notice under Section 48 issued to the relative of the petitioner is also defective, inasmuch as, the ground of arrest stated therein is the alleged recovery of the contraband drugs from the possession of the petitioner, whereas no such recovery was made from the present petitioner and the ground of Page No.# 3/4 arrest ought to have been shown as an implicatory statement of the co-accused regarding the supply of drugs by the petitioner. 5. It is further submitted that the present petitioner has been arrested merely on the basis of the statement of the co-accused, which is not admissible as per the decision of the Hon’ble Apex Court in Tofan Singh Vs. State of Tamil Nadu, reported in (2021) 4 SCC 1. 6. The learned additional PP, on perusal of the TCR, does not dispute the absence of the signature of any witness on the arrest memo but denies the defectiveness of the notice issued under section 48 BNSS to the relative of the petitioner. The learned Addl. PP also strenuously submits that the police has every right to arrest any person on the basis of implicatory statements made by another arrested person. 7. I have duly considered the rival submissions and have perused the material on record. It is the settled law, that the statutory requirement under Section 36 BNSS, flows from Article 21 of the Constitution of India, and therefore any breach of the said provision would override the embargo under section 37 of the NDPS Act. A coordinate bench of this court in Abu Shama & Anr. Vs. State of Assam, vide order dated 02.12.2025 in BA number 3636 of 2025, held that the ratio laid down in the case of DK Basu Vs. State of West Bengal, (1977) 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 identification and name tags with their designation. The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest, and such memo shall be attested by at least one witness. Page No.# 4/4 8. It has also been rightly pointed out by learned counsel that the ground of arrest has not been accurately reflected in the notice under section 48 BNSS to the relative of the petitioner. Furthermore, it is also rightly contended by learned counsel for the petitioner that the statement of the co-accused cannot be taken into consideration against another accused, relying upon the decision of the Hon’ble Apex Court in Tofan Singh(Supra). It has also been held by the Apex Court in P. Krishna Mohan Reddy Vs. The State of Andhra Pradesh reported in 2025 Live Law (SC) 598, that the restriction on the use of the statements of the co-accused applies equally while considering an application for bail. 9. In view of the procedural infirmities noticed above, the prayer for bail deserves to be allowed. 10. The petitioner, shall be released on bail of Rs. 1,00,000/- with two sureties of like amount, to the satisfaction of the learned court below, in connection with the aforesaid case. 11. It is further provided that the petitioner shall not attempt to tamper with the evidence or try to intimidate or influence the witnesses in any manner. 12. Bail petition stands allowed as above. JUDGE Comparing Assistant