GAHC010217912025 2025:GAU-AS:15789

THE GAUHATI HIGH COURT

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

Case No. : Bail Appln./3166/2025

NUR KALAM

S/O HAJARAT ALI

VILL- CHAR KUKURMARA

P.S. MANKACHAR

DIST. SOUTH SALMARA MANKACHAR, ASSAM

VERSUS

THE STATE OF ASSAM

REP. BY THE PP, ASSAM

Advocate for the Petitioner : MR. A Z AHMED, MR. A KHALEK

Advocate for the Respondent : PP, ASSAM,

BEFORE

HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

Date : 20.11.2025

1. Heard Mr. A.Z.Ahmed, learned Counsel for the accused applicant. Also

heard Mr. K. Baishya, learned Addl.Public Prosecutor for the respondent.

2. This is an application under Section 483 of the BNSS, 2023 for granting of bail to the accused applicant namely, Nur Kalam in connection with Mankachar PS Case No.64/2025 ( GR No.137/2025) under Section 22 ©/29 of the NDPS Act.

3. The gist of the allegation in the FIR is about recovery of significant quantity of suspected psychotropic substance i.e. Yaba tablets (4070 Nos.)

weighing about 400 grams.

4. One additional affidavit in the instant case has been filed on behalf of the accused applicant bringing on record the arrest memo under Section 36 of the BNSS, 2023.

5. The learned counsel appearing for the accused applicant submits that the statutory provision of Section 36 of the BNSS of 2023 is not complied with in the case as arrest memo does not have the signature of any relative or a respectable person of the locality from where the arrest was made.

6. He submits that in view of the aforesaid, as per the settled law in the case of D.K.Basu vs- State of West Bengal , reported in (1997) 1 SCC 416, which provides that it is desirable that the officer arresting the person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness, who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made..

7. He submits that in view of the settled law as well as the statutory provision as provided under Section 36 of BNSS, arrest could not have been made by the arresting authority without preparing the arrest memo as per the aforesaid provision. Therefore, he submits that non-compliance of the aforesaid provision as prescribed under Section 36 of the BNSS has made arrest of the accused applicant illegal and therefore, the accused applicant has an unfettered right to get bail in the instant case.

8. Per contra, learned Addl. Public Prosecutor submits that notices under Section 47 as well as Section 48 of the BNSS were duly issued to the accused applicant at the time of arrest and arrest memo also contained the grounds of his arrest. Since the accused applicant is aware of his grounds of arrest, therefore, there is no prejudice caused to the applicant for his arrest and therefore, there is no illegality in his arrest.

9. This Court has gone through the materials available in the Case Diary and has found that in the arrest memo there is neither any signature of any family members of the person arrested nor there is any signature of respective member of the locality where the arrest made was.

10. Taking into account the fact i.e. the non-compliance of Section 36 of the BNSS, which is mandatory in nature as settled by the Hon’ble Apex Court in the case of D. K. Basu (supra), this Court is of the considered opinion that while arresting the accused-applicant, the mandates of the said law was not complied with, which violates the fundamental right of life and personal liberty guaranteed under Articles 21 and 22(1) of the Constitution of India.

11. In view of the aforesaid findings, the accused applicant is entitled to be released on bail on ground of failure of the arresting authority to comply with the mandatory requirements under Section 36 of the BNSS, 2023.

12. Accordingly, the accused applicant named above, shall be released on furnishing bail bond of Rs. 1,00,000/- (Rupees One Lac only) with 02(two)

sureties ( one of whom should be a Government Servant residing withi