Page No.# 1/6 GAHC010101932026 2026:GAU-AS:8637 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1359/2026 BISHAL DAS S/O. DIGESH DAS, RESIDENT OF AMRAGHAT, SEVEN STAR CLUB, P.S.- KACHUDHARAM, P.O. KACHUDHARAM, DISTRICT- CACHAR, ASSAM, PIN 788119. VERSUS THE STATE OF ASSAM REPRESENTED BY ITS PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MS. R S SADIAL, MR. M R SODIAL Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 16-06-20 26 Heard Mr. M. R. Sodial, learned counsel for the petitioner and Mr. R. J. Baruah, learned Additional Public Prosecutor, Assam. 2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused/petitioner, namely, Bishal Das in connection with Page No.# 2/6 NDPS Case No. 56/2026 arising out of Lakhipur P.S. Case No. 40/2026 registered under Sections 21(b)/25/29 of the NDPS Act. 3. Scanned copy of the TCR has already been received. Perused the same. 4. It is submitted by Mr. Sodial, that the present petitioner is innocent and no contraband has been seized from the conscious possession of the present petitioner. However, it is a fact that the on the very fateful day, he took lift in a car, wherein the contraband was there and when police made a naka checking, the other two occupants of the car fled away and the present petitioner got arrested along with the contraband. 5. However, the quantity of the contraband alleged to have been seized from the possession of the present petitioner is 220 grms and it is of intermediate quantity. 6. He further submitted that the present petitioner is behind the bar since last 101 days the case has already been charge sheeted, though charge is yet to be framed. 7. He further submitted that there is no proper compliance of Section 36b of BNSS while issuing the arrest memo and the signature of the family members were not obtained at the time of issuing the arrest memo, which violates the provision of Section 36b BNSS and in view of that also, the petitioner may be released on bail. 8. That apart, he submitted that the accused petitioner is in custody since last 101 days and hence considering his length of detention also his bail prayer may be considered. 9. However, the petitioner is still ready and willing to appear before the learned Trial Court on each and every date to be fixed by the Court. Page No.# 3/6 10. Mr. Baruah, learned APP raised objection and submitted that there was proper compliance of Sections 47 and 48 BNSS, whereby the family members of the petitioner was intimated immediately prior to his arrest, however, in the arrest memo there is no signature of the family members. But that cannot be sole ground for considering the bail prayer of the present petitioner, where there is proper compliance of Sections 47 and 48 BNSS as no prejudice will be caused to the present petitioner for not taking the signature of family members, friends or relatives. 11. Mr. Baruah, learned APP further submitted that the case is registered under the intermediate quantity and charge in the case is yet to be framed and the case is at very initial stage of trial. 12. That apart the quantity of the contraband which is recovered from the possession of the petitioner is much more than the small quantity. 13. Mr. Baruah, learned APP accordingly raised vehement objection and submitted that it cannot be a case for considering his bail application at this stage, when the evidences of the vital prosecution witness are yet to be recorded. 14. Heard the submissions made by the learned counsel for the parties and I have also perused the scanned copy of the TRC. 15. The basic issue raised by the petitioner is that the contraband was not recovered from his conscious possession and the quantity of the contraband was also intermediate quantity. That apart, the plea of non compliance of Section 36b of BNSS as per which the signature of the friends, family members or relatives is to be obtained at the time issuing the arrest memo to the arrested accused persons is also taken as one of the plea and it is the case of the Page No.# 4/6 petitioner that due to non compliance of Section 36b itself, the petitioner is entitled for bail. In that regard he also relied on an order of a coordinate Bench of this Court in BA No. 263/2026 dated 26.02.2026. 16. It is a fact that the quantity of the contraband which is alleged to have been recovered from the conscious possession of the petitioner is of intermediate quantity. But it cannot be denied that it is much more higher than the small quantity. The petitioner took the plea that he took a lift in the car and at the time of naka checking the other occupant of the car fled away and for which, he was apprehended along with the contraband. But until and unless there is any evidence to that regard, at this stage it cannot be held that the contraband was not recovered from the possession of the petitioner, rather, there are materials in the case record which reveals that the contraband was recovered from the conscious possession of the petitioner. 17. It is also an admitted fact that while issuing arrest memo complying the provision of Section 36b BNSS, the signature of the family members, relatives or friends were not taken by the arresting authority/IO. Bu in the same time, it also cannot be denied that there was proper compliance of Section 47 and 48 BNSS whereby the family members, relatives were informed regarding the arrest of the present petitioner prior to his arrest and the accused petitioner is well aware about the grounds of his arrest and his family members were accordingly intimated by issuing the notice under Section 48 BNSS. 18. Thus, it is not the case that any prejudice is caused to the petitioner only for non compliance of Section 36b BNSS, when there is sufficient compliance of Section 47 and 48 BNSS and the family members or relatives of the accused petitioner was also intimated regarding the ground of arrest of the petitioner. That apart, it is also seen that in the arrest memo as well as in the notice under Page No.# 5/6 Section 47 BNSS, the signature of the present petitioner was obtained intimating the petitioner regarding his grounds of arrest. 19. In the case of State of Karnataka Vs. Sri Darshan reported in 2025 SCC OnLine SC 1702, it has been observed that the compliance of the requirement under Section 47 and 48 BNSS is sufficient unless demonstrable prejudice is shown. 20. Here in the instant case also it is seen that the there is proper compliance of Section 47 and 48 BNSS and no prejudice has been caused to the petitioner only for not obtaining the signature of the family members or relatives of the accused petitioner complying the provision of Section 36b BNSS, where there is sufficient compliance of Section 47 and 48 BNSS and the family members, relatives were accordingly intimated regarding his arrest. 21. Further from the guidelines under Section 36b BNSS corresponding to Section 41B of CrPC was incorporated after guidelines passed in the case of D. K. Basu Vs. State of West Bengal reported in AIR 1997 SC 601, only to prevent some atrocities made by police and to monitor the proper procedure of arrest. 22. So, merely because of proper non-compliance of Section 36b BNSS i.e., only in absence of the signature of the relative, family members of the accused petitioner cannot be held that there is violation of Article 21 or 22 (1) of the Constitution of India, wherein the family members as well as the accused was duly intimated regarding the ground of arrest. 23. In view of above and also considering the nature of allegation brought against the present petitioner, this Court is of the opinion that only considering the length of detention of the petitioner of 101 days, the petitioner is not Page No.# 6/6 entitled to be released on bail at this stage. 24. Accordingly, this bail application of the petitioner stands rejected. JUDGE Comparing Assistant