The absence of witness signatures on an arrest memo does not automatically invalidate an arrest if the substantive legal requirements, including notifying the arrestee and their relatives of the grounds and particulars of the detention, have been effectively satisfied.

Judgment :

Sanjeev Kumar Sharma, J.

Heard Mr. N J Dutta, learned counsel for the petitioners. Also heard Mr. R J Baruah, learned Addl. Public Prosecutor for the State of Assam.

2. This is an application under Section 483 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023 for granting regular bail to the petitioner arrested in connection with Jakalabandha P.S Case No. 21/2025, under Section 220 /25/29 of the NDPS Act, 1985.

3. Besides claiming innocence, learned counsel for the petitioners submits with reference to the arrest memo that the no signature of any family member or respected person of the locality where the accused was arrested has been taken on the said arrest memo, which fact is not disputed by the prosecution.

4. I have perused the said arrest memo and therefrom, it is evident that no such signature of any witness as mentioned above is available in the memo of arrest. Therefore, the question arises as to whether the non-absence of such signature of the witness vitiates the arrest or renders the same illegal.

5. Learned Addl. Public Prosecutor submits that no prejudice has been suffered by the petitioner, as the grounds of arrest have also been furnished to him by way of notice under Section 47 BNSS as well as to his wife by way of notice under Section 48 .

6. Learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court in D.K Basu Vs. State of West Bengal , reported in (1997) 1 SCC 416, wherein the Hon'ble Apex Court laid down certain requirements as follows:

"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) ……..

(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 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 or 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 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".

7. The aforesaid directions have since been incorporated under the BNSS, which therefore governs the requirements to be followed by the police while arresting a person. In this regard, relevant provision of the is Section 36, which is quoted herein below:-

"36. Procedure of arrest and duties of officer making arrest-

(a) Bear an accurate, visible and dear Identification of his name which will facilitate easy Identification;

(b) Prepare a Memorandum of Arrest which shall be-

(1) 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 t