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GAHC010038732026

2026:GAU-AS:3040

THE GAUHATI HIGH COURT

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

Case No. : Bail Appln./569/2026

MANIK CHAND

S/O SAHAN MIAH

1 NO. SAHAPARA, P.S - MANKACHAR, DIST- SOUTH SALMARA

MANKACHAR, ASSAM

VERSUS

THE STATE OF ASSAM

REP. BY THE PP, ASSAM

Advocate for the Petitioner : MR. S ISLAM, A R MONDAL,MR. M MONDAL

Advocate for the Respondent : PP, ASSAM,

BEFORE

HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

27.02.2026

Date :

1. Heard Mr. S. Islam, learned counsel for the accused applicant. Also heard Mr.

K. K. Parasar, learned Additional Public Prosecutor for the State of Assam.

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2. This is an application filed under Section 483 of BNSS, 2023, praying for

granting bail to the accused-applicant who was arrested on 22/11/2025 in

connection with Mankachar P.S. Case No. 157/2025, registered under Sections

21(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. An FIR was lodged on 23.11.2025 by one S. I. Rustom Ali Ahmed of

Mankachar Police Station, alleging, inter alia, that on 22.11.2025, at about 8:41

PM, on receipt of a secret information, the police while doing Naka Checking at

Mankachar Tinali at about 8:50 PM, the police found the accused-applicant

coming from Mirjumla side towards Mankachar town on a bike bearing

Registration No. AS-24-7726; that during the body search and inspection of the

bike, they recovered a pink coloured bag containing 20 bottles of Codeine

Phosphate & Triprolidine Hydrochloride Syrup. The police seized the materials

and arrested the accused-applicant.

4. On receipt of the FIR, the Police registered Mankachar P.S. Case No.

157/2025, under Sections 21(C)/29 of the NDPS Act, 1985, against the accused-

applicant.

5. The learned counsel submits that earlier bail application in the same case

was rejected by this Court on 16.02.2026. However, he has filed this instant bail

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application with any ground i.e., non-compliance with the mandatory provisions

of Sections 36 of BNSS.

6. The learned counsel appearing for the accused applicant submits that while

arresting the accused applicant 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 applicant should be released

on bail on the ground only.

7. 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 arrest and such Memo shall be attested by at least one

witness.

8. Learned APP on the other hand submits that the case diary in the instant

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case is required. He further submits that the instant case involves recovery of

commercial quantity of narcotics contrabands i.e., 20 bottles of Codeine

Phosphate & Triprolidine Hydrochloride Syrup (total 2659 grams) 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 further 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.

9. 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 Consti