Page No.# 1/6 GAHC010014112026 2026:GAU-AS:5444 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./265/2026 SABOR ALI S/O- LATE HASMAT ALI,VILL- N, K DARRANGA,P.S- TAMULPUR,DIST- TAMULPUR, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR H A AHMED, MISS. S PARBIN,MR. R ALI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 21.04.2026 [1] Heard Mr. H.A. Ahmed, the learned counsel for the petitioner. Also heard Mr. K.K. Das, the learned Additional Public Prosecutor, appearing for the State of Assam. [2] This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been Page No.# 2/6 filed by the petitioner, namely, Sabor Ali, who has been detained behind the bars since 21.04.2025, in connection with Special NDPS Case No. 18/2025, under Sections 22(C)/29 of the NDPS Act, 1985. [3] It is pertinent to mention herein that this is for the second time the petitioner has approached this court. On earlier occasion, his prayer for bail was rejected by this court, by order dated 04.09.2025, passed in Bail Application No. 2475/2025, as by that time charge-sheet was laid and the petitioner was directed to approach the trial court. [4] The trial court has also rejected the prayer for bail of the petitioner. [5] The gist of accusation in this case is that on 21.04.2025, one Mohendra Saikia had lodged an FIR before the Officer-in-Charge of Tamulpur Police Station, inter alia, alleging that an information was received through reliable sources that some individuals would be carrying psychotropic tablets somewhere near Sulemanbasti. On receipt of this said information, a search team was constituted and a naka checking was organized near Sulemanbasti and one suspected person, who identified himself as Sabor Ali was apprehended. During search of this said person, 1935 grams of Samplex Plus Capsules suspected to contain Tramadol was recovered from his possession. [6] The learned counsel for the petitioner has submitted that the petitioner has approached this court mainly Page No.# 3/6 on the ground of violation of his Fundamental Rights guaranteed to him under Article 21 of the Constitution of India as well as statutory rights under Sections 36 as well as 62 of the BNSS, 2023. [7] The learned counsel for the petitioner has submitted that at the time of arrest of the present petitioner, no arrest memo was prepared and no independent witness was present or any signature of independent witness has been obtained thereon as required under Section 36(b) (i) of the BNSS, 2023. [8] The learned counsel for the petitioner submits that the Apex Court has, in the case of “D.K. Basu Vs. State of West Bengal” reported in “AIR 1997 SC 610” has laid down that the requirement of attestation of an independent witness in the arrest memo is a mandatory provision. He submits that same has been also mandated statutorily by Section 36 of the BNSS, 2023 and any violation of the same would amount to curtailing the Fundamental Rights of the petitioner guaranteed under Article 21 and 22 of the Constitution of India. [9] He submits that a Co-ordinate Bench of this court has granted bail to petitioners under similar conditions. In support of his submissions, he has cited rulings of the Co- ordinate Bench of this court in the case of “Wahidur Ali And Anr. Vs. The State of Assam” in Bail Application No. 263/2026 as well as “Anowar Hussain Choudhury Vs. Page No.# 4/6 The State of Assam” in Bail Application No. 3775/2025. [10] On the other hand, the learned Additional Public Prosecutor Mr. K.K. Das, has submitted that he has been informed by the Investigating Officer of the present case that arrest memo was prepared under Section 36 of the BNSS, 2023 at the time of arrest of the present petitioner and a copy of the arrest memo is also produced by the learned Additional Public Prosecutor. Same has been forwarded to him by the Investigating Officer of this case. The said arrest memo is kept in the record after marking the same as ‘X’. However, the learned Additional Public Prosecutor has fairly submitted that though the arrest memo was prepared and though it bears the signature of the accused, however, in the arrest memo no signatures of any independent witnesses are there. He also submits that the embargo of Section 37 of the NDPS Act, 1985 would be applicable in this case as total 1935 grams of Samplex Plus Capsules suspected to contain Tramadol was recovered from the possession of the present petitioner. Hence, he opposes the grant of bail to the present petitioner. [11] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the scanned copy of the trial court records. [12] Though this case involves offence under Section 22(C) of the NDPS Act, 1985 involving commercial quantity of contraband, hence, apparently, Section 37 is applicable to this Page No.# 5/6 case, however, it is also a settled law that where there is a violation of any Fundamental Rights of an arrestee due to any breach of mandatory procedural requirement by the arresting authority, the Fundamental Rights of such an arrestee would override the embargo of Section 37 of the NDPS Act, 1985. [13] In the instant case, it is apparent that though Section 36 (b)(i) required that the memorandum of arrest prepared at the time of arrest shall have to be attested by at least one witness, who may be the member of the family of the arrested person or a respectable member of the locality from where the arrest is made, same has not been followed. [14] This court, is of the considered opinion that the arrest of the petitioner made in contravention of the provisions of Section 36 read with Section 62 of the BNSS, 2023 violates the Fundamental Rights of the petitioner guaranteed to him under Article 21 of the Constitution of India. Hence, the embargo of Section 37 of the NDPS Act, 1985 is not applicable in this case and accordingly, the petitioner is entitled to get bail in this case. [15] In view of the discussions made in the foregoing paragraphs, the above-named petitioner is allowed to go on bail of Rs. 1,00,000/-(Rupees One Lac only) with two suitable sureties of like amount, subject to the satisfaction of the learned Special Judge, Baksa with following conditions that:- i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 18/2025, under Sections 22(C)/29 of the NDPS Act, 1985. Page No.# 6/6 ii. That the petitioner shall appear before the trial court as and when so required by the trial court; iii. That the petitioner 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 trial court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhaar Card or Driving License or PAN card, mobile number, and other contact details before the trial court; v. That the petitioner shall not leave the jurisdiction of the trial court without prior permission of the trial court and when such leave is granted by the trial court, the petitioner shall submit his leave address and contact details during such leave before the trial court; and vi. That the petitioner shall not commit any offence while on bail. [16] With the above observation, this bail application is accordingly, disposed of. [17] Send back the Case Diary. JUDGE Comparing Assistant