Page No.# 1/12 GAHC010070432026 2026:GAU-AS:7858 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./986/2026 ALOM HUSSAIN ALIAS ALOM HUSSAIN TAPADAR S/O ABDUL AZIZ R/O VILL- MUBARAKPUR, P.O. SARISHA, P.S. SRIBHUMI, DIST. SRIBHUMI, ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MISS. P M AHMED,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 05-06-2026 Heard learned counsel Mr. A. Ahmed for the petitioner Alom Hussain @ Alom Hussain Tapadar, who has filed this application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS for short) with prayer for bail Page No.# 2/12 as he is behind bars since 22.12.2025 in connection with Sribhumi Police Station Case No. 517/2025 registered under Sections 22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). 2. It is submitted on behalf of the petitioner that the arrest memo under Section 36 of the BNSS has not been signed by any relative or any friend of the petitioner, in compliance of the guidelines of the Hon’ble Supreme Court in D.K. Basu-Versus-State of West Bengal reported in (1997) 1 SCC 416, wherein it has been held that :- “35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives Page No.# 3/12 outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. 36. Failure to comply with the requirements hereinabove mentioned shall apart Page No.# 4/12 from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. 37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.” 3. Per contra, learned Additional Public Prosecutor Mr. P. Borthakur laid stress in his argument that the petitioner is booked under a serious offence. There are incriminating materials in the Case Diary against the petitioner. He was caught red handed while transporting 6303 Grams of Yaba tablets. It is submitted by the learned Additional Public Prosecutor that although Section 36 of the BNSS has to be followed in letter and spirit, in the case on hand, there is no instance of any infringement of right to personal liberty of the petitioner. Notices have been issued to the petitioner and he has affixed his signature and notices have also been issued under Section 48 of the BNSS to a relative of the petitioner, which clearly indicates that the petitioner’s relative was informed about the petitioner’s ground of arrest on the same day when the petitioner was arrested i.e. on 22.12.2025. 4. I find force in the argument submitted by learned Additional Public Prosecutor. The arrest memo marked as Annexure-4 clearly reflects that the petitioner was arrested on 22.12.2025 and his signature has been taken and as per Section 36 of the BNSS, there is no ambiguity that notice has been served to the person arrested. The notice under Section 36 of the BNSS is marked as Annexure-4 of the petition. Page No.# 5/12 Section 36(c) of the BNSS reads:- “36. Procedure of arrest and duties of officer making arrest. – Every police officer while making an arrest shall - …(c) inform 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.” 5. This implies that the petitioner has to be informed, unless the memorandum as per Section 36 (b) is attested by a member of his family, that he has a right to have a relative or friends or any other person named by him, to be informed of his arrest. The petitioner was thus informed and his signature was taken on the memorandum of arrest under Section 36 of the BNSS. 6. It is also pertinent to mention at this juncture that the requirements of Section 36 of the BNSS flow from Articles 21 and 22(1) of the Constitution of India as held in D.K. Basu (supra) and are to be strictly followed. 7. It has been held in DK Basu (supra) that the information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest. Failure to comply with the requirements herein above mentioned shall, apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of court may be instituted in any High Court of the country for having territorial jurisdiction over the matter. 8. In this case the arrest memo marked as Annexure-4 and the notice under Page No.# 6/12 Section 48 of the BNSS marked as Annexure-3, clearly reveals that the petitioner was arrested on 22.12.2025 at 2.00 PM and a member of his family was also informed about his arrest and grounds of arrest were communicated to him on the same day i.e. on 22.12.2025. Thus, despite the absence of signature of any of the relative of the petitioner on the arrest memo, it can be safely held that the petitioner’s family member was informed about his arrest in connection with this case on the same day within 12 hours. Thus, there has been no violation of right to personal liberty as the petitioner’s family members have already been informed. The petitioner’s arrest and the grounds of arrest have been communicated to a member of his family. 9. Learned counsel for the petitioner has not disputed that notice under Section 48 of the BNSS has not been served to a member of his family. It is submitted by the learned counsel for the petitioner that a Coordinate Bench of this Court vide order dated 20.01.2026 in Aminur Islam and Anr. Versus The State of Assam (Bail Appln./4068/2025) has held as follows :- “13. Thus it is not a case that any prejudice is caused to the present petitioners only for non-compliance of Section 36(b) of the BNSS, 2023, when there is sufficient compliance of Sections 47 & 48 of the BNSS, 2023 and the family members or relatives of the accused petitioners were also intimated regarding the grounds of arrest of the petitioners. That apart, it is also seen that in the arrest memo as well as in the notices under Section 47 of the BNSS, 2023, the signature of the present petitioners were obtained intimating the petitioners regarding their grounds of arrest. 14. In the case of State Of Karnataka vs Sri Darshan Etc. reported in 2025 SCC OnLine SC 1702, it has been observed that the compliance of the requirement under Sections 47 & 48 of the BNSS, 2023 is sufficient unless demonstrable prejudice is shown. Accordingly, it is seen that no prejudice has been caused to Page No.# 7/12 the present accused petitioners only because of non-obtaining the signature of family members or relatives of the accused petitioners, complying under Section 36(b) of the BNSS, 2023, wherein there are sufficient compliance of Sections 47 & 48 of the BNSS, 2023, whereby family members or relatives of the accused petitioners were duly intimated regarding their arrest.” 10. It is further submitted by the learned counsel for the petitioner that this decision is contradictory to several decisions of Coordinate Benches of this Court in:- Juber Ahmed-Versus-The State of Assam in connection with Bail Appln./1199/2026 (order dated 25.05.2026); Abdul Sheikh @ Abdul Saikh-Versus-The State of Assam and Anr. in connection with Bail Appln./3373/2025 (order dated 26.11.2025); Abu Shama and Anr.-Versus-The State of Assam in connection with Bail Appln./3636/2025 (order dated 02.12.2025); Aminur Islam Alias Nengra Police and Anr.-Versus-The State of Assam in connection with Bail Appln./3650/2025 (order dated 20.01.2026). 11. It is submitted that all the petitioners in the aforementioned cases were granted bail as the arrest memo does not contain the signature of any friend or relative of the aforementioned petitioners. 12. When there are judgments of Coordinate Benches of this Court, this Court cannot disagree with the judgments of the Coordinate Benches. 13. Learned counsel for the petitioner has relied on the decision of the Page No.# 8/12 Hon’ble Supreme Court in Adani Power Ltd. & Anr Versus Union of India & Ors. in SLP (Civil) No. 24729/2019, wherein vide order dated 05.01.2026 it has been held that :- “77. The discipline expected of coordinate Benches does not permit such an approach. This Court, in State of Uttar Pradesh v. Ajay Kumar Sharma (2016) 15 SCC 289, has reiterated that once a coordinate Bench of a High Court has settled a question of law, a subsequent Bench of equal strength is bound to follow that view when confronted with the same issue. If the later Bench believes that the earlier view is so manifestly erroneous or inapplicable that it ought not to be followed, the later Bench must refer the matter to a larger Bench for reconsideration. What it cannot do is to sidestep or whittle down the earlier pronouncement by confining it artificially or by treating it as a fact- specific indulgence.” **** **** **** “80. We accordingly hold that the Division Bench of 2019 acted contrary to the settled doctrine of judicial discipline. When a coordinate Bench of a High Court has already determined a question of law, a subsequent Bench of equal strength is bound to follow that view; if it doubts its correctness, the only permissible course is to refer the matter to a larger Bench. This rule, has been reaffirmed by this Court in State of U.P. v. Ajay Kumar Sharma (2016) 15 SCC 289, is not procedural etiquette but a structural safeguard against judicial inconsistency. The discipline of stare decisis ensures coherence and predictability in law, which are indispensable to the legitimacy of adjudication. The 2019 Bench, by confining the earlier decision to a narrow time frame without referring the matter to a larger Bench, effectively unsettled a settled proposition and undermined the authority of precedent. Such a course was impermissible. The coordinate Bench was duty-bound to apply the ratio of the 2015 judgment to the appellant’s case, and its failure to do so vitiates the impugned decision.” 14. Reverting back to this case, it is held that the ratio of the decision of Adani Power Ltd. & Anr (supra) is not applicable to this case. The factual background is altogether different from the facts and circumstances of this case. Page No.# 9/12 This case of Adani Power Ltd. (supra) relates to retrospective levy of 16% for power consumption, whereas, the instant case is relating to a bail matter. The facts and circumstances of each of bail matters may not be similar and the attending circumstances to grant bail may not be similar. This case on hand, is not at all similar to the cases referred to by the learned counsel for the petitioner. 15. It is true that the present petitioner has also prayed for bail in a case registered under the NDPS Act, but at the same time, there is no instance that the petitioner’s right to liberty has been curtailed. It is true that there are conflicting judgments of this Court relating to signatures of friends or family members to be taken down on the arrest memo, in similar NDPS Cases, but considering the peculiar facts and circumstances of this case, it appears that no reference is required to be made to decide the issue of Section 36 of the BNSS. 16. I have scrutinized the Case Diary and there are incriminating materials against the petitioner. The grounds of arrest have been communicated to the petitioner as well as his family members and the family members were well informed about the arrest of the petitioner. It has also been held by a Coordinate Bench of this Court in Jabbar Hussain-Versus-The State of Assam in connection with Bail Appln./887 of 2026 wherein vide order dated 23.04.2026 it has been held that :- “12. The purpose of the arrest memo under Section 36 BNSS is that it is the formal record of the deprivation of the liberty of the arrestee, and its primary purpose is to provide legal accountability for the arrest itself. Therefore, preparation of the memorandum of arrest mentioning the date, time, place of arrest as well as the place where the petitioner is being detained are all Page No.# 10/12 mandatory requirements of law. The necessity of taking the signatures of witnesses of the kind mentioned in Section 36 on the arrest memo is obviously an act of attestation of the particulars mentioned in the memo of arrest. That being the position of law, if the said particulars as available in the arrest memo with regard to date, time, and place of arrest, etc., are communicated to the family member/friends/nominated person by way of a notice under Section 48 BNSS, the same purpose is served. 13. In the instant case, there is no dispute that the notice under Section 48 BNS, BNSS, has been duly served upon the wife of the arrestee, mentioning the particulars of the arrestee and also mentioning about the date and place of arrest, as well as the place where he was being held, that is Nilambazar PS. 14. What Clause (c) of Section 36 BNSS requires is that if the arrest memo is not signed/attested by a member of his family, then he is to be informed 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. This requirement stands duly complied as the arresting authority has itself informed the wife of the arrestee about his arrest by way of the notice under Section 48 BNSS.” **** **** **** “16. In view of the aforesaid discussion, I am of the view that absence of the signature of the witnesses as mentioned in Section 36 BNSS on the arrest memo does not ipso facto vitiate the arrest nor renders it illegal. Furthermore, in view of the fact that commercial quantity of contraband was recovered from the position of the petitioner, the rigors of Section 37 are squarely attracted. And based on the material available on record, there is no ground to come to a view that the petitioner may not be guilty of the alleged offense.” 17. Learned Additional Public Prosecutor has relied on the decision of the Hon’ble Supreme Court in State of Punjab Versus Balraj Singh @ Billa in connection with Special Leave Petition (Crl) No. 896 of 2026 wherein vide order dated 02.06.2026 it has been held that :- Page No.# 11/12 “22. However, we note that recently this Court in Tasleem Ahmed v. State Govt. of NCT of Delhi has referred the question concerning the approach of constitutional Courts in bail matters under special statutes, where “Article 21, prolonged incarceration and statutory restrictions intersect”. In view of the said reference, we do not wish to deliberate on this issue further, save and except that in our view paramount consideration is nothing but interest of justice for all. Should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail, particularly, when a war is waged against the nation, be it in the form of supply of drugs, which vitally affects the national economy and health of the people.” 18. Relying on this judgment of Balraj Singh @ Billa (supra), it is submitted that this is a similar case of drug peddling, which vitally affects the national economy and health of the people. Section 37 of the NDPS Act also acts as an embargo in cases of transportation of commercial quantity of contraband. This is a case of transportation of commercial quantity of contraband and the case of D.K. Basu (supra) relates to a case of gross miscarriage of justice and custodial torture, which is not similar to this case. 19. In view of the foregoing discussions, it is held that the right to personal liberty of the present petitioner has not been curtailed. It is held that a family member of the petitioner was informed and the notice was served to his relative under Section 48 of the BNSS on the same day when the petitioner was arrested and the arrest memo was prepared. The petitioner’s signature has been taken down in the arrest memo. The petitioner was also communicated regarding his grounds of arrest. Thereby, there appears to be no justified ground to grant bail to the petitioner at this stage of investigation. The Page No.# 12/12 petitioner’s right to liberty has not been infringed. Investigation is still under progress and investigation may be adversely affected if the petitioner is enlarged on bail. 20. In view of the foregoing discussions, the petitioner’s prayer for bail stands rejected at this stage of investigation. 21. In terms of the above observation, this Bail Application stands disposed of. 22. Send back the Case Diary. JUDGE Comparing Assistant