Page No.# 1/8 GAHC010042102026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./609/2026 SEIKHONGAM HAOKIP SON OF LATE PAOJATONG HAOKIP,RESIDENT OF VILLAGE - M. SONGPI,JOUJANG, P.O. MOTBUNG,P.S. GAMNOM SAPARMEINA,DISTRICT - SENAPATI,MANIPUR, PIN-795107,PRESENTLY RESIDING AT DAMDEI TALOULANG, BEHIND CHILDRENS HOME,P.O. AND P.S. MOTBUNG,DIST. KANGPOKPI, MANIPUR-795107 VERSUS THE UNION OF INDIA REPRESENTED BY STANDING COUNSEL, NARCOTIC CONTROL BUREAU AT GUWAHATI. Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 31.03.2026 Heard Mr. B. K. Mahajan, learned counsel appearing on behalf of the accused- applicant. Also heard Mr. R.K.D. Choudhury, learned Dy. SGI for NCB. Page No.# 2/8 2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused-applicant in connection with NDPS Case No. 16/2024, registered under Sections 21(c)/29 of the NDPS Act, 1985, arising out of NCB Guwahati Crime No. 12/2023, pending before the Court of Additional District & Sessions Judge No. 1, Kamrup (Metro), Guwahati. The case was registered as NCB Crime No. 7/2025, under the aforementioned sections before the aforesaid Trial Court. 3. The accused-applicant was arrested on 01.08.2023 and since then, he is in judicial custody. 4. It is seen from the records that the accused-applicant had earlier on 3(three) occasions, approached this Court for his bail, however, on all three occasions, his prayers for bail were rejected on 14.11.2024, 13.05.2025 and 01.05.2025 respectively. 5. The matter relates to recovery of 0.673 Kgs of Heroin, which is much more than commercial quantity as prescribed under the NDPS Act, 1985, from the conscious possession of the accused-applicant and another co-accused from Room No. 16 of Goswami Lodge near Down Town, Guwahati on 01.08.2025, while the accused- applicant was staying in the said Lodge along with another co-accused, namely, Bijoy Gupta. Both the accused persons arrived at Guwahati from Manipur in a Maruti Gypsy, bearing Registration No. MN-03-5705. 6. On being tested by the Drug Detection Kit, from each of the 59 nos. of soap cases, from which the said Heroin was recovered, the same gave positive result for Heroin. Accordingly, the aforesaid contraband materials contained in the soap cases were seized from the conscious possession of the accused persons. The investigating authority had seized the Maruti Gypsy vehicle, mobile phones, Driving Licenses etc, from the accused persons. It is also seen that FSL report dated 06.11.2023, pertaining to the seized contraband narcotics recovered from the possession of the accused-applicant, gave positive result of Heroin. After completion of the investigation, offence report was submitted before the learned Special Judge (NDPS)-cum-Addl. Sessions Judge No. 1, Page No.# 3/8 Kamrup (M) against the accused persons, including the accused-applicant, under Sections 20(c)/21(c)/29 of NDPS Act on 23.02.2024. 7. It is also seen from the records that prosecution has already examined 5(five) of it’s witnesses till date. 8. Mr. B. K. Mahajan, learned counsel appearing for the accused-applicant has submitted that though the bail applications of the accused-applicant were rejected on earlier occasions that does not preclude this Court from considering the instant bail on certain different considerations and if, some distinct grounds are taken for seeking bail, the same can be considered on the new grounds. In support of his submission, the learned counsel has relied on the case of Babu Singh and Others Vs. State of Uttar Pradesh, reported in (1978) 1 SCC 579. The learned counsel has further submitted that the instant bail application has been filed, praying for bail of the accused-applicant on the ground that at the time of his arrest, his constitutional rights guaranteed under Articles 21 and 22(1) of the Constitution of India as well as statutory rights guaranteed under Sections 36 and 58 of the BNSS, 2023, were violated and therefore, the whole arrest itself got vitiated and on that ground alone, the accused-applicant is entitled to get bail. The learned counsel submits that while the accused-applicant was arrested, though the arrest-memo, under Section 36 of the BNSS was prepared, the same was not prepared as per the provisions of Section 36 of the BNSS. He submits that no signature of any witness has been taken in the arrest memo prepared by the arresting authority. He further submits that from the materials, it is apparent that though the accused-applicant was produced before the Magistrate on a subsequent date, he was, in fact, not produced within 24 hours of his arrest as mandated under Section 58 of the BNSS. In view of the aforesaid, he submits that clear violations of Section 36 as well as Section 58 of the BNSS were committed by the arresting authority while arresting the accused-applicant which goes to the root of the matter, vitiating the whole arrest process. Therefore, he prays that the accused-applicant should be granted bail on the aforesaid grounds. Page No.# 4/8 9. Mr. R. K. D. Choudhury, learned Dy. SGI for NCB, submits that though no signature of any witness has been taken on the arrest memo prepared by the arresting authority, in view of recovery of huge amount of narcotic contraband materials (Heroin) and also, since the trial in the instant case has already started and 5(five) of the PWs have already been examined before the Trial Court, at this stage, the accused-applicant should not be granted bail. 10. This Court has considered the submissions made by the counsel appearing for the respective parties and has also perused the TCR that has been placed before this Court. 11. In the case of Babu Singh (supra), the Hon’ble Supreme Court has observed as follows: - “2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negation. In this view, we entertain the application and evaluate the merits pro and con.” 12. In view of the aforesaid observations made by the Hon’ble Supreme Court, it is clear that there is no bar in considering a subsequent bail application on the ground of violation of constitutional rights of the accused-applicant, under Articles 21 and 22(1) of the Constitution of India. The fundamental rights guaranteed under aforesaid Articles of Page No.# 5/8 the Constitution of India, cannot be deemed to be waived even if an accused-person does not explicitly plead for the same. The same is bound to be upheld as have been provided to it’s citizens by the Constitution of India. Therefore, an allegation of violation of constitutional mandates while filing the instant bail application, in the considered opinion of this Court, merits consideration. 13. Now coming back to the facts of the instant case, it is seen that arrest memo made under Section 36 of BNSS, the arresting authority, while arresting the accused-applicant did not procure any signature of any witness on the arrest-memo made under Section 36 of the BNSS (corresponds to Section 41B of the CrPC). 14. Section 36 of the BNSS clearly mandates that while arresting an accused person, the arresting officer must prepare a formal record of arrest, which must be attested by at least one witness, such as, a relative or a respectful member of the locality. 15. The ratio laid down in the case of D.K. Basu Vs. State of West Bengal with Ashok K. Johri Vs. State of U.P., reported in (1997) 1 SCC 416, clearly lays down that the police personnel carrying out the arrest and handling the interrogation of the arrestee shall bear accurate, visible and clear identification and name tags with the designation. The particulars of such police personnel who handles interrogation of the arrestee must be recorded in a register and the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo of arrest shall be attested by at least one witness. 16. For the purpose of instant case, Section 36 and Section 62 of the BNSS, 2023, being relevant are quoted herein below: - “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; Page No.# 6/8 (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 according 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”. 17. 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. 18. What is discernable from the aforesaid two sections is that there is a mandate provided by the aforesaid Section 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 Page No.# 7/8 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. 19. 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. 20. 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. 21. 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. 22. Taking into account the ratio laid down by the Hon’ble Supreme 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 the mandate of Section 36 of the BNSS, 2023, in the instant case, while arresting the accused, whereby curtailing his fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. 23. In view of the aforesaid, this Court does not find any reason to get into the aspect of compliance of Section 58, as has been submitted by the learned counsel for the accused-applicant. This Court is of the considered view that the violation of Section 36 Page No.# 8/8 of the BNSS alone is a sufficient ground for consideration of the instant bail application of the accused-applicant. 24. 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. 1, Kamrup (M), Guwahati, subject to the following conditions: - 1. that, the accused-applicant shall appear before the learned Trial Court as and when required during the trial of the case; 2.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; 3. that, the accused-applicant shall provide details of his Aadhar Card, Driving License, PAN-Card and Passport (if available) to the learned Special Judge No. 1, Kamrup (M), Guwahati; 4. that, the accused-applicant shall not commit any offence while on bail. 25. In view of the aforesaid directions, this bail application stands disposed of as allowed. JUDGE Comparing Assistant