GAHC010036512026 2026:GAU-AS:2992 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Bail Appln./580/2026 ABHIJIT DEY AND ANR S/O- GOURMANI DEY, R/O- BIRUBARI, H/ NO- 05, P.S- PALTANBAZAR, DIST.- KAMRUP(M), ASSAM

2: BICKY CHOUDHURI @ BIKY CHOUDHURY S/O- RUNU CHOUDHURY R/O- BIRUBARI H/ NO- 07 P.S- FATASHIL DIST.- KAMRUP (M)

ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. N J DUTTA, N NATH,MR M AHMED,MR R A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

Date : 26.02.2026 Heard Mr. N. J. Dutta, learned counsel for the accused applicants. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State of Assam.

2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, (BNSS) 2023, praying for grant of bail to the accused applicants in connection with North Guwahati P.S. Case No.107/2025, registered under Sections 21(C)/29 of NDPS Act.

3. An FIR was lodged on 23.11.2025 by SI(P) Sri Dinesh Chutia of Amingaon Out Post, alleging that based on secret information regarding the transportation of narcotics from Manipur to the Lower Assam districts by a Renault Kwid (registration no. AS-01 FB 7240) and a Tata Altroz, the police team stopped the Renault Kwid vehicle at Naka checking. On being questioned about the other vehicle, i.e. Tata Altroz vehicle, they stated the Altroz was heading towards Barpeta, via Amingaon. Accordingly, police was alerted and the Altroz was intercepted in Amingaon. During the search of both the vehicles, 50 boxes/PLTs of suspected heroin weighing 970 grams were recovered from secret compartments located under the Tata Altroz vehicle. The accused/applicants were subsequently arrested and they remained in custody since then.

4. On receipt of the FIR, the police registered North Guwahati P.S. Case No.107/2025 under the aforementioned sections.

5. The learned counsel for the accused applicants submits that the earlier bail application filed by the present accused applicants was rejected by this Court on 19.02.2026, and at that time, the relevant issue was not taken up. The instant application has been filed to bring to the notice of this Court about the statutory lapse on the part of the Arresting Authority in arresting the accused applicants. He submits that while arresting the accused applicants, the mandates of Section

36 of BNSS were not complied with to the effect that no signature of any independent witnesses or any family members of the arresting persons were obtained while preparing the Arrest Memo. He further submits that the accused applicants should be granted bail solely on this ground at this stage. In this connection, he referred to some of the orders passed by this Court.

6. The learned counsel appearing for the accused applicants submits that while arresting the accused applicants, the Arresting Authority though has issued 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 applicants being illegal, the accused applicants should be released on bail on that ground only.

7. The learned Addl. P.P., on the other hand, relying on the Case Diary, submits that although the signatures of the accused applicants were not obtained during the preparation of the Arrest Memo, the contraband materials were seized solely from their possession. He further submits that since they have committed an offence under the NDPS Act and the quantity recovered is of commercial quantity, they should not be granted bail at this stage due to the rigours of Section 37 of the NDPS Act, and therefo