Page No.# 1/8 GAHC010069652026 2026:GAU-AS:6911 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1020/2026 JAHIRUL ISLAM ALIAS JOHIRUL ISLAM AND ANR S/O MADAN ALI SK. R/O VILL- MARKULA P.O. MARKULA, P.S. BAGUAN DIST. GOALPARA, ASSAM 2: JAHIDUL ISLAM S/O RAIJUDDIN AHMED @ RAIZUDDIN AHMED VILL- BATABARI P.O. MARKULA P.S. BAGUAN DIST. GOALPARA ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. SAYED SALIM AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 19.05.2026 Page No.# 2/8 Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. S.S. Ahmed, learned counsel for the accused applicants. Also heard Ms S. H. Bora, learned Additional Public Prosecutor for the State. 2. This is an application under section 483 of the BNSS, 2023 praying for granting of bail to the accused applicants in connection with Goalpara P.S. Case No.83/2025, registered under Section 61(2)/123 BNS read with Section 22(C)/25/29 of NDPS Act, 1985. 3. The gist of the allegations made in the FIR dated 01.05.2025, filed by one SI Kiswar Kumar Choudhury before the Goalpara police station is that while on duty near Bhalukdubi Law College, he along with other staffs intercepted a motor cycle and on checking, recovered 7,661 Nos. of YABA tablets from the possession of the accused applicants. On the receipt of the FIR, Goalpara P.S. Case No.83/2025 was registered under Section 61(2)/123 of BNS read with Section 22(C)/25/29 of NDPS Act, 1985. 4. The bail application filed earlier by the accused applicants vide Bail Application No.2775/2025 was rejected by this Court vide its order dated 07.11.2025. 5. After completion of the investigation, the police has filed the charge sheet being charge sheet No.132/2025 dated 31.08.2025, under Section 61(2)/123 of BNS read with Section 22(C)/25/29 of NDPS Act against the accused applicants, wherein, the prosecution cited 5(five) numbers of witnesses as prosecution witnesses. 6. Mr. H.R.A. Choudhury, learned Senior Counsel appearing for the Page No.# 3/8 accused applicants submits that while arresting the accused applicants by arresting authorities, the mandates of the Section 36 of the BNSS, 2023 have not been followed and therefore, the whole arrest proceeding is vitiated and the fundamental rights guaranteed to the accused applicants under Article 21 and 22(1) of the Constitution of India have been violated. He submits that while arresting the accused applicants, arresting authorities while preparing the respective arrest memos, neither the signature of the accused applicants nor any signature of any family members or any respectable members of the locality where the arrest was made, were taken in the arrest memos. He submits that while arresting a person, arresting authority is required to prepare an arrest memo under Section 36 of the BNSS, 2023, and in the arrest memo, a signature or attestation of any of the family members of the accused person or of a respectable person of the locality is required to be obtained in the arrest memo. He further submits that the arrest memo must contain the signature of the arrested person. He submits that in the instant case, the aforesaid provision has not been complied with. He submits that Section 62 of the BNSS, 2023 further requires any arrest made by the police officer has to be in compliance with the provisions of BNSS or any other prevailing laws at the time of arrest. He submits that since the arrest has been made in violation of Section 36 of the BNSS, 2023, on that ground only, the accused applicants are liable to be released on bail. He referred the case of D.K. Basu Vs. State of West Bengle reported in (1997) 1 SCC 416, in support of his submission. 7. Ms S.H. Bora, learned Additional Public Prosecutor, on the other hand, submits that though no signatures in the arrest memo have been obtained Page No.# 4/8 while arresting the accused applicants, notices under Section 47 and 48 of BNSS, 2023 have been issued to the accused applicants as well as their family members at the time of the arrest of the accused applicants and therefore, there is no prejudice caused to the accused applicants on their arrests. She submits that Section 37 of the NDPS Act is applicable in the instant case, since the quantity recovered is of commercial quantity. In view of aforesaid, she submits that since the accused applicants have been intimated about their grounds of arrest at the time of their arrests, the non-compliance of mandates of Section 36 did not prejudice the accused applicants and therefore, in the instant case, accused applicants should not be granted bail, at this stage. 8. The Trial Court record in the instant case has been received and the same is perused. This Court has also heard the submissions made by the learned counsel appearing for the respective partes. 9. The fundament rights are paramount under the Constitution of India. The Article 21 provides that "no person shall be deprived of his life or personal liberty except according to a 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 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. Section 36 of BNSS, 2023 has its roots in Article 21 and 22 of the Constitution of India which specifically provides for procedure of arrest and duties of the officer making such arrest. This procedure being statutory provisions, any Page No.# 5/8 violation of the same makes the arrest in violation of statutory laws. 10. 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 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”. 11. 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 Page No.# 6/8 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. In the event, there is no counter-sign of the accused person in the arrest memo, the arrest memo becomes non-existent in the eyes of the law. The purpose of having a counter sign in the arrest memo of the arrested person is to serve the same as an official and legally recognised record of an arrest. In absence of the arrest memo, vital evidence of the arrest of the accused person and that the arrest has been carried out legally becomes questionable. 12. What is discernible from the aforesaid two sections quoted herein above is that there is a mandate provided by the aforesaid Section 36 of BNSS, 2026, 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. Additionally, the Arrest Memo is required to be counter signed by the arrested person to show that the person has been legally arrested. Section 62 provides that no arrest shall be made except in accordance with the provisions of BNSS, 2023 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 as laid down in the BNSS, 2023 or any other law applicable to the case, while making such arrest. Non compliance of such provisions shall 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 Page No.# 7/8 set at liberty, i.e., to be released on bail. 13. 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 the family members of the arrested person, nor of any respectable person of the locality wherein the arrest was made. It is also seen that no counter sign was taken from the accused applicants or attestation was made by the accused applicants. This clearly violates the mandates of Section 36 read with Section 62 of the BNSS, 2023. 14. 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 BNSS, 2023, this Court is of the considered opinion that there is violation of mandates of Section 36 of the BNSS, 2023, in the instant case while arresting the accused applicants, whereby, curtaining their fundamental rights guaranteed under Article 21 and 22 of the Constitution of India. 15. In view of the aforesaid discussion and findings, this Court directs the accused applicants to be released forthwith on bail on furnishing a bail bond of Rs.50,000/-(Rupees Fifty Thousand) with 2(two) sureties of like nature to the satisfaction of learned Special Judge (NDPS), Goalpara subject to following conditions: i) That the accused applicants shall appear before the learned trial court as and when required during trial of the case; ii) that the accused applicants shall not directly or indirectly make any inducement, threat, or promise to any person, whom may be Page No.# 8/8 acquaint with the facts of the case, so as to dissuade such person from disclosing such facts before the trial court; and ii) that the accused applicants shall provide details of their Aadhar Cards, Driving licences (if any), Pan Cards and passports (if available), to the learned Special Judge (NDPS), Goalpara, Assam. 16. 16. In view of the aforesaid directions, this bail application stands disposed of as allowed. JUDGE Comparing Assistant