Page No.# 1/7 GAHC010013832026 2026:GAU-AS:2989 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./263/2026 WAHIDUR ALI AND ANR S/O HANIF ALI, R/O KHARGHULI, PS LATASHIL,DIST KAMRUP (M), ASSAM 2: RAJU GIRI S/O TEG BAHADUR GIRI R/O NIJARAPAR PS BOKAJAN DIST KARBI ANGLONG ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR R A AHMED, MR M AHMED,MR. SANU HUSSAIN,MR K THAKUR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 26.02.2026 Heard Mr. N. J. Dutta, learned counsel for the accused applicants. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State of Page No.# 2/7 Assam. 2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, (BNSS)  2023, praying for grant of bail to the accused applicants in connection with North Guwahati P.S. Case No.107/2025, registered under Sections 21(C)/29 of NDPS Act. 3. An FIR was lodged on 23.11.2025 by SI(P) Sri Dinesh Chutia of Amingaon Out Post, alleging that based on secret information regarding the transportation of narcotics from Manipur to the Lower Assam districts by a Renault Kwid (registration no. AS-01 FB 7240) and a Tata Altroz, the police team stopped the Renault Kwid vehicle at Naka checking. On being questioned about the other vehicle, i.e. Tata Altroz vehicle, they stated the Altroz was heading towards Barpeta, via Amingaon. Accordingly, police was alerted and the Altroz was intercepted in Amingaon. During the search of both the vehicles, 50 boxes/PLTs of suspected heroin weighing 970 grams were recovered from secret compartments located under the Tata Altroz vehicle. The accused/applicants were subsequently arrested and they remained in custody since then. 4. On receipt of the FIR, the police registered North Guwahati P.S. Case No.107/2025 under the aforementioned sections. 5. The learned counsel for the accused applicants submits that the earlier bail application filed by the present accused applicants was rejected by this Court on 19.02.2026, and at that time, the relevant issue was not taken up. The instant application has been filed to bring to the notice of this Court about the statutory lapse on the part of the Arresting Authority in arresting the accused applicants. He submits that while arresting the accused applicants, the mandates of Section 36 of BNSS were not complied with to the effect that no signature of any Page No.# 3/7 independent witnesses or any family members of the arresting persons were obtained while preparing the Arrest Memo. He further submits that the accused applicants should be granted bail solely on this ground at this stage. In this connection, he referred to some of the orders passed by this Court. 6. The learned counsel appearing for the accused applicants submits that while arresting the accused applicants, the Arresting Authority though has issued Arrest Memo but the same is not in compliance of Section 36 of BNSS, 2023. He submits that as per the mandates of section 36 of the BNSS, no signature of any witness who is the member of the family of the person arrested or a respectable member of the locality where the arrest was made, was taken on the Arrest Memo. He submits that in view of the aforesaid violation, the arrest of the accused applicants being illegal, the accused applicants should be released on bail on that ground only. 7. The learned Addl. P.P., on the other hand, relying on the Case Diary, submits that although the signatures of the accused applicants were not obtained during the preparation of the Arrest Memo, the contraband materials were seized solely from their possession. He further submits that since they have committed an offence under the NDPS Act and the quantity recovered is of commercial quantity, they should not be granted bail at this stage due to the rigours of Section 37 of the NDPS Act, and therefore, he opposes the bail application. 8. This Court has perused the Case Diary and seen that no signatures of any independent witnesses or family members, or respected persons of the locality are present in either of the Arrest Memos prepared by the Arresting Authority while arresting the accused applicants. Page No.# 4/7 9. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds. 10. It is not in dispute that in the case of NDPS Act also, the provisions of arrest of a person as laid down in the BNSS, 2023 have to be complied with. 11. In this connection, Section 36 and Section 62 of the BNSS 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; (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 accordingly 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". Page No.# 5/7 12. 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. 13. What is discernible from the aforesaid two sections is that there is mandate provided by the aforesaid section of 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 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. 14. 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 Page No.# 6/7 the matter and the initial arrest itself becomes illegal. 15. In the instant case in hand, it is seen that the Arrest Memos. do 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. 16. 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. 17. In view of the ratio laid down by the Hon'ble Apex Court in the case of D. K. Basu, Ashok K Johri V. State of West Bengal, reported in AIR 1997 SC 610 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 Section 36 of the BNSS, 2023 in the instant case while arresting the accused applicants whereby curtailing their fundamental rights guaranteed under Article 21 and 22 of the Constitution of India. 18. In view of the aforesaid discussions and findings, this Court directs that the accused applicants to be released forthwith on bail on furnishing of bail bond of Rs.50,000/-(Rupees Fifty thousand) each with one surety of like nature to the satisfaction of the learned Special Judge (NDPS), Kamrup (M), Amingaon, subject to the following conditions:- (i) that the accused applicants shall cooperate in the investigation of North Guwahati P.S. Case No.107/2025; whenever called for; (ii) that the accused applicants shall appear before the Investigating Page No.# 7/7 Authority as and when required; (iii) that the accused applicants 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; (iv) that the accused applicants shall provide their contact details including photocopies of their Aadhar Cards or Driving Licenses or PAN cards as well as, mobile numbers, and other contact details before the learned Special Judge (NDPS), Kamrup (M), Amingaon; and (v) that the accused applicants shall not commit any offence while on bail. 19. In view of the aforesaid directions, this bail application stands disposed of, as allowed. JUDGE Comparing Assistant