Page No.# 1/5 GAHC010058372026 2026:GAU-AS:7221 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./850/2026 HANIF ALI S/O SHOHOR ALI R/O TAKIMARI,P.S. LAKHIPUR DIST. GOALPARA, ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, S NAZNIN,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 25.05.2026 1. Heard Mr. H.R.A. Choudhury, the learned Senior Counsel, assisted by Mr. I.U. Chowdhury, the learned counsel for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor for the State of Assam. Page No.# 2/5 2. This application under Section 483 of the Bharatiya Nagarik Surakhya Sanhita, 2023, has been filed by the petitioner, namely, Hanif Ali, who has been detained behind the bars since 15.10.2025, in connection with Lakhipur P.S. Case No. 147/2025, registered under Section 123 of BNS, read with Section 22(C)/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 15.10.2025, one Sri Jugal Das, SI of Police had lodged an FIR before the Officer-In-Charge of Lakhipur police station, inter alia, alleging that on that day, at about 7:39 PM, he received an information through reliable sources that one “Polu” of Takimari village is dealing with narcotics drugs in his shop for a long time. Accordingly, a search operation was made in the shop of the present petitioner and during search operation 90 strips of Tramadol Hydrocloride, Tablets containing 720 capsules were recovered therefrom. 4. The learned Senior Counsel for the petitioner submits that on earlier occasion the petitioner had approached this court seeking bail, however, as on that occasion, the petitioner had not specially mentioned the ground regarding non-compliance of Section 36 of BNSS in his bail application. He prayed for withdrawal of the said bail application and, accordingly, by order dated 09.03.2026, passed in Bail Application No. 170/2026, the said bail application was dismissed on withdrawal. 5. The learned Senior Counsel for the petitioner submits that this time the petitioner has mainly approached this court on the ground of non- compliance of mandatory provisions of Section 36 of BNSS, 2023 by the arresting authority at the time of arrest of the present petitioner. He submits that at the time of the arrest of the present petitioner when the arrest memo was prepared, no attestation by at least one witness as indicated in Section Page No.# 3/5 36(b) of BNSS, 2023 was obtained and as such, the arrest of the petitioner was not in accordance with the provisions contained in BNSS, 2023. He submits that there is a mandate of law in Section 62 of the BNSS, that no arrest shall be made except the provisions of BNSS or any other law of the time being in force providing for arrest. However, he submits that in spite of specific provisions for attestation of the arrest memo prepared at the time of arrest by an independent witness, no such attestation was done in this case. He submits that in the case of “D.K. Basu Vs. State of West Bengal” reported in “(1997) 1 SCC 416,” the Apex Court has clearly indicated that the arrest memo prepared at the time of arrest shall be attested by one witness. He submits that non-compliance of the said provision amounts to breach of fundamental rights guaranteed to the petitioner under Article 21 and 22 of the Constitution of India. 6. In this regard, he has cited a ruling of a co-ordinate bench of this court in the case of “Abu Shama And Anr. Vs. The State of Assam”, [order dated 02.12.2025, in Bail Application No. 3636/2025.] 7. On the other hand, Mr. K. Baishya, the learned Additional Public Prosecutor though submits that the offence involved in this case is for commercial quantity of contraband, however, he fairly submits that on perusal of the case record, it appears that there has been a violation of provision of Section 36 of BNSS, 2023 in the instant case as the arrest memo does not contain any attestation by an independent witness as required under the law. He also submits that even the signature of the arrestee, i.e., the petitioner is also not there in the arrest memo. 8. I have considered the submissions made by learned counsel for both sides and have gone through the materials available on record. I have also gone through the ruling of the co-ordinate bench of this court, which has been cited Page No.# 4/5 by the learned Senior Counsel for the petitioner in support of his submissions. 9. Though this case involves commercial quantity of contraband, however, on perusal of the arrest memo, a copy of which is available in the case record, it is apparent that no attestation of any independent witness was done in the said arrest memo as required under the provision of Section 36 (b) of the BNSS, 2023. As such, apparently, there has been a violation not only on the provision contained in Section 36 of BNSS, but also of Section 62 of BNSS, which mandates that the arrest of an arrestee has strictly as per provisions contained in BNSS, or any other law, which is time being in force providing for the arrest. The violation of the aforesaid provisions, as observed by the co- ordinate bench of this court in the aforementioned case Abu Shama And Anr. Vs. The State of Assam (supra), amounts to the breach of fundamental right of the petitioner guaranteed to him under Article 21 and 22 of the Constitution of India and such a breach overrides the embargo of Section 37 of the NDPS Act, 1985. As such, the petitioner is entitled to get bail in this case on that count alone. 10. Accordingly, the above-named petitioner is allowed to be released on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount, subject to the satisfaction of the learned Special Judge, Goalpara with the following conditions: i. That the petitioner shall cooperate in the trial of Lakhipur P.S. Case No. 147/2025, registered under Section 123 of BNS, read with Section 22(C)/29 of the NDPS Act, 1985; ii. That the petitioners shall appear before the trial court as and when so required by the trial Court; Page No.# 5/5 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 Aadhar 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 petitioners shall submit their 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. 11. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant