GAHC010263372025 2025:GAU-AS:17512

THE GAUHATI HIGH COURT

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

Case No. : Bail Appln./3886/2025

IMDADUL HOQUE @ IMTADUL HOQUE

S/O- MOTIOR RAHMAN, R/O- VILL- KABAITARY PT V, P.O.- JOGIGHOPA,P.S.

JOGIGHOPA,DIST.- BONGAIGAON, ASSAM, PIN- 783382

VERSUS

THE STATE OF ASSAM

REPRESENTED BY THE LEARNED PP, ASSAM

Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN

Advocate for the Respondent : PP, ASSAM,

BEFORE

HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

17.12.2025

Heard Mr. M. R. Khandakar, learned counsel appearing for the accused

applicant and Mr. P. Borthakur, learned Addl. PP appearing for the State.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused applicant in connection with Goalpara P.S.

Case No.158/2025 registered under Section 61(2)/123 of BNSS, 2023 read with Sections 21(b)/22(c)/25/29 of the NDPS Act.

3. The gist of the case as narrated in the FIR dated 14.08.2025 is that during naka checking suspected Heroin weighing 6.88 gms and 514 Tramadal Capsules weighing approximately 318 gms as well as 172 Nitrazepam Tablets weighing 92.8 gms were recovered from the dashboard of the car driven by the accused applicant.

4. On receipt of the FIR, the Police registered Goalpara P.S. Case No. 158/2025 under Section 61(2)/123 of the BNSS read with Section

21(b)/22(c)/25/29 of NDPS Act.

5. The learned counsel appearing for the accused applicant submits that while arresting the accused applicants the arresting authority though has issued an Arrest Memo but the same is 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 applicant 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 applicant 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 applicant. 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 applicant by not attesting the Arrest Memo by one witness, shall not give any right to the accused applicant 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 established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be