An arrest made in violation of the mandatory procedural requirements under Section 36 of the BNSS, 2023, specifically the lack of witness attestation on the arrest memo, renders the arrest illegal and overrides the restrictive provisions for bail under Section 37 of the NDPS Act.

ORDER

Heard Mr. N. Dubey, learned counsel appearing on behalf of the accused-applicant. Also heard Mr. R.K.D. Choudhury, learned Dy. SGI for NCB.

2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused-applicant in connection with NDPS Case No. 16/2024, registered under Sections 21(c)/29 of the NDPS Act, 1985, arising out of NCB Guwahati Crime No. 12/2023, pending before the Court of Additional District & Sessions Judge No. 1, Kamrup (Metro), Guwahati. The case was registered as NCB Crime No. 7/2025, under the aforementioned sections before the aforesaid Trial Court.

3. The accused-applicant was arrested on 02.08.2023 and since then, he is in judicial custody.

4. It is seen from the records that the accused-applicant, approached this Court for his bail, by way of filing a bail application being Bail Appln. No. 2613/2025. However, vide order dated 11.09.2025, this Court had rejected his prayer for bail.

5. The matter relates to recovery of 0.673 Kgs of Heroin, which is much more than commercial quantity as prescribed under the NDPS Act, 1985, from the conscious possession of the accused-applicant and another co-accused from Room No. 16 of Goswami Lodge near Down Town, Guwahati on 01.08.2025, while the accused applicant was staying in the said Lodge along with another co-accused, namely, Seikhongam Haokip. Both the accused persons arrived at Guwahati from Manipur in a Maruti Gypsy, bearing Registration No. MN-03-5705.

6. On being tested by the Drug Detection Kit, from each of the 59 nos. of soap cases, from which the said Heroin was recovered, the same gave positive result for Heroin. Accordingly, the aforesaid contraband materials contained in the soap cases were seized from the conscious possession of the accused persons. The investigating authority had seized the Maruti Gypsy vehicle, mobile phones, Driving Licenses etc, from the accused persons. It is also seen that FSL report dated 06.11.2023, pertaining to the seized contraband narcotics recovered from the possession of the accused-applicant, gave positive result of Heroin. After completion of the investigation, offence report was submitted before the learned Special Judge (NDPS)-cum-Addl. Sessions Judge No. 1, Kamrup (M) against the accused persons, including the accused-applicant, under Sections 20(c)/21(c)/29 of NDPS Act on 23.02.2024.

7. It is also seen from the records that prosecution has already examined 5(five) of it’s witnesses till date.

8. Mr. N. Dubey, learned counsel appearing for the accused-applicant has submitted that though the bail applications of the accused-applicant were rejected on earlier occasions that does not preclude this Court from considering the instant bail on certain different considerations and if, some distinct grounds are taken for seeking bail, the same can be considered on the new grounds. In support of his submission, the learned counsel has relied on the case of Babu Singh and Others Vs. State of Uttar Pradesh , reported in (1978) 1 SCC 579. The learned counsel has further submitted that the instant bail application has been filed, praying for bail of the accused-applicant on the ground that at the time of his arrest, his constitutional rights guaranteed under Articles 21 and 22(1) of the Constitution of India as well as statutory rights guaranteed under Sections 36 and 58 of the BNSS, 2023, were violated and therefore, the whole arrest itself got vitiated and on that ground alone, the accused-applicant is entitled to get bail. The learned counsel submits that while the