GAHC010254582025 2025:GAU-AS:17511

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Bail Appln./3712/2025

S SEIKHOLUN VAIPHEI AND NAR

SO SONTAH THAGKHOSEI VAIPHEI, RO MAKHAO,

PS SANGAIKOT,

DIST CHURACHANPUR, STATE MANIPUR

2: LUNMINGOU SUANTAK ALIAS GOGO

SO THANGNTINAK SUANTAK

RO SAHEIPHEI PS SANGAIKOT

DIST CHURACHANPUR

STATE MANIPU

VERSUS

THE STATE OF ASSAM

REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

Advocate for the Petitioner : MR D MEDHI, MR. S SARKAR,MR K THAKUR

Advocate for the Respondent : PP, ASSAM,

BEFORE

HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

17.12.2025

Heard Mr. K. Thakur, learned counsel appearing for the accused

applicants and Mr. P. Borthakur, learned Addl. PP for the State of Assam.

2. This is an application under Section 483 of BNSS, 2023 praying for granting bail to the accused applicants in connection with North Guwahati P.S. Case No.84/2025 registered under Section 21©/29 of the NDPS Act.

3. The gist of the allegation as alleged in the FIR dated 03.09.2025 are that after receipt of certain confidential information that contraband narcotics would be transported from Churachandpur (Manipur) to lower Assam District via Kamrup in a Red Hyundai i10 vehicle, the police intercepted the vehicle in Amingaon at 11.30 PM; the Police recovered 74 soap boxes/ packets of heroin (weighing 965 gms without soap box cover) which had been hidden in door panels and dickey of the vehicle. Two carriers persons i.e. the two accused persons were arrested from the spot. 4. On receipt of the FIR, the Police registered North Guwahati P.S. Case No. 84/2025 under Section 21©/29 of the NDPS Act.

5. The learned counsel appearing for the accused applicants submits that while arresting the accused applicants the arresting authority though has issued Arrest Memos but the same are not in compliance of Section 36 of BNSS, 2023. He submits that as per the mandates of section 36 of the BNSS, no signature of any witness who is the member of the family of the person arrested or a respectable member of the locality where the arrest was made, was taken on the Arrest Memo. He submits that in view of the aforesaid violation, the arrest of the accused applicants being illegal, the accused applicants should be released on bail on that ground only.

6. In support of his submission, the learned counsel appearing for the accused applicants has referred to the case of D. K. Basu, Ashok K Johri-vs-

State of West Bengal, reported in AIR 1997 SC 610, wherein, the Hon’ble Apex Court lays down that Police personnel carrying out arrest shall prepare a Memo of Arrest at the time of the arrest and such Memo shall be attested by at least one witness.

7. On the other hand, the learned Addl. PP appearing for the State submits that the instant case involves recovery of commercial quantity of narcotics contraband i.e Heroin from the possession of the accused applicants. Therefore, the rigours of section 37 of the NDPS Act shall be applicable in the instant case. He submits that only because a procedural lapse has occurred while arresting the accused applicants by not attesting the Arrest Memos by one witness, shall not give right to the accused applicants to be enlarged on bail. To support his contention that section 37 shall be squarely applicable in the instant case, the learned Addl. PP has referred to the case of Hero Sarkar-vs-Union of India through the Intelligence Officer Narcotics Control Bureau Kolkata Zonal Unit [CRM (NDPS) 445/2024], decided by the High Court at Calcutta on 28.03.2025, wherein, the Hon’ble Calcutta High Court held that even when an arrest is made without complying the requirements of section 41B Cr.P.C. (Section 36 BNSS) still, bail cannot be granted in an NDPS case without satisfying the two conditions mentioned in that Section.

8. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure es