Gauhati High Court
Anowar Hussain Choudhury vs The State Of Assam on 19 February, 2026
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GAHC010252442025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3775/2025
ANOWAR HUSSAIN CHOUDHURY
S/O ABDUR RASID CHOUDHURY, R/O NARAJNPUR, BIDYARATANPUR, P.S.
DHOLAI, DIST. CACHAR, ASSAM, PIN 788114
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM.
Advocate for the Petitioner : MR. S C BISWAS, MR P SARMA,MS. J GHOSH
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
19.02.2026
Heard Mr. SC Biswas learned Council appearing for the petitioner and also
heard Mr. B Sharma learned Additional Public Prosecutor for the State of Assam.
2. This is an application under section 483 of the BNSS 2023 for granting
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regular bail to the accused petitioner who, as per the memo of arrest, was
arrested on 1 July 2025 and has been behind bars since then. The petitioner
was arrested in connection with NDPS case number 92/2025, corresponding to
Government Railway Police Station Badarpur Case No. 20 of 2025, under section
21(c) of the NDPS Act.
3. Drawing the attention of this Court to the notice under section 47 and
48 of the BNSS served upon the petitioner and his wife respectively, the learned
counsel for the petitioner has submitted that the notice under section 47, BNSS
had been served on the petitioner in English language, with which he was not
conversant. Referring to the notice under section 48 of the BNSS, the learned
counsel submitted that the grounds of arrest declared therein were not
sufficient for the wife of the petitioner to understand the grounds in a manner
to effectively defend her husband. By drawing the attention of this Court to the
arrest memo under Section 36 of the BNSS, Counsel for the petitioner has
submitted that the said memorandum of arrest is not attested as required under
the provisions of the BNSS, 2023.
4. Mr. B. Sarma, learned Additional Public Prosecutor, Assam submitted
that the guidelines under Section 36 of the BNSS, 2023 was incorporated after
the guidelines passed in the case of D.K. Basu & Anr. vs. State of West Bengal,
reported in AIR 1997 SC 610, only to monitor the proper procedure of arrest.
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The present is a case of commercial quantity and therefore, the rigor of Section
37 of the NDPS Act is applicable and because of the procedural lapses, the
accused petitioner shall not be entitled to the privilege of bail. He submits that
since there was substantial compliance of the provisions of Sections 47 & 48 of
the BNSS, 2023, non-compliance of Section 36(b) of the BNSS, 2023 cannot
lead to an inference of violation of the Article 21 or Article 22(1) of the
Constitution of India.
5. Mr. Sarma, the learned Additional Public Prosecutor submits that bail
cannot be granted in cases under the NDPS Act, without satisfying the twin
conditions under Section 37 of the NDPS Act. Accordingly, it is submitted by Mr.
Sarma, the learned Addl. P.P., Assam that considering the gravity of the offence,
it is not at all a fit case to grant bail to the accused petitioner at this stage, who
are allegedly involved in a case of commercial quantity.
6. This Court has considered the rival submissions and is of the opinion
that the fundamental rights are paramount under the Constitution of India,
where Article 21 provides that no person shall be deprived of his life or personal
liberty except according to the procedure established by law and Article 22 of
the Constitution of India further provides for protection of a person against
arbitrary arrest and detention, including the right to be informed of the grounds
of arrest and that a citizen should not be detained without informing him of
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such grounds.
It is not in dispute that in the case of NDPS Act also, the provisions of arrest of
a person as laid down in the BNSS, 2023 must be complied with. For the
purpose of the present case Section 36 and Section 62 of the BNSS being
relevant are quoted herein:- “36. Procedure of arrest and duties of officer
making arrest- Every police officer while making an arrest shall- (a) Bear an
accurate, visible and clear identification of his name which will facilitate easy
identification; (b) Prepare a Memorandum of Arrest which shall be- (i) attested
by at least one witness, who is a member of the family of the arrested person or
a respectable member of the locality where the arrest is made; (ii)
countersigned by the person arrested; and (c) Inform the person arrested,
unless the memorandum is attested by a member of his family, that he has a
right to have a relative or a friend or any other person named by him to be
informed of his arrest.” “62. Arrest to be made strictly according to Sanhita- No
arrest shall be made except in accordance with the provisions of this Sanhita or
any other law for the time being in force providing for arrest”.
It is apparent from a conjoint reading of the aforesaid two provisions that
Memorandum of Arrest is a necessary document that serves as confirmation
that the individual in question was arrested under certain circumstances. In
other words, it creates a point of reference to determine the circumstance under
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which a citizen was detained/arrested. Therefore, it must provide the
particulars that are specific to the arrest. A minimum of one witness is required,
who should be a member of the accused person’s family and where a family
member is unavailable, a respectable individual of the locality in which the
arrest is made, has to be called upon to testify as a witness. The arrested
person is required to countersign the arrest memo himself. Section 62 provides
that no arrest shall be made except in accordance with the provisions of the
BNSS or any other law for the time being in force providing for arrest.
Therefore, non-compliance with such provisions at the time of arrest is to be
considered a violation of the mandatory provisions, which would render that
arrest is illegal, and once the arrest is rendered illegal, the arrested person shall
have an unfettered right to have the arrest and detention to be set at naught.
7. Although Section 37 of the NDPS Act provides for certain conditions to
be fulfilled before granting bail to an arrested person in cases involving seizure
of commercial quantity, the same shall apply only when the arrest itself is not
illegal. However, if any arrest is made in violation of the mandatory provisions as
laid down in the BNSS, 2023, the very initial arrest becomes illegal and the rigor
of the said provision would not be attracted.
8. Accordingly, this Court, therefore directs that the petitioner be released
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on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh), with two
suitable sureties of the like amount, at least one of whom shall be a
Government Servant and at least one of whom shall have immovable property,
within the jurisdiction of the learned Trial Court to the satisfaction of the said
Court, subject to the following conditions:
i) the petitioner shall appear before the learned Special Judge, on each
and every date, as fixed by the learned Special Judge and also cooperate
with the investigation and and when called upon;
ii) the petitioner shall refrain from such activities with which they are
alleged;
iii) the petitioner shall not leave the territorial jurisdiction of the learned
Special Judge, without prior written permission;
iv) the petitioner shall not hamper and tamer with the evidence of the
case’
v) the petitioner shall not directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the Court or to any Police
Officer.
vi) the petitioners shall provide their contact details including
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number, and other contact details before the learned Trial Court, if the
same are not yet seized;
vii) the learned Special Judge shall be at liberty to impose such other
condition or conditions as may be deemed necessary to ensure the
participation of the petitioners in the trial;
viii) the prosecuting authority shall be at liberty to bring any violation of
the conditions imposed to the notice of the competent court and request
for a recall/cancellation of bail.
10. The bail application stands disposed of.
JUDGE
Comparing Assistant
