Gauhati High Court
Jahirul Islam Alias Johirul Islam And … vs The State Of Assam on 19 May, 2026
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GAHC010069652026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1020/2026
JAHIRUL ISLAM ALIAS JOHIRUL ISLAM AND ANR
S/O MADAN ALI SK.
R/O VILL- MARKULA
P.O. MARKULA, P.S. BAGUAN DIST. GOALPARA, ASSAM
2: JAHIDUL ISLAM
S/O RAIJUDDIN AHMED
@ RAIZUDDIN AHMED
VILL- BATABARI
P.O. MARKULA
P.S. BAGUAN DIST. GOALPARA
ASSA
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. SAYED SALIM
AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
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Date : 19.05.2026
Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr.
S.S. Ahmed, learned counsel for the accused applicants. Also heard Ms S.
H. Bora, learned Additional Public Prosecutor for the State.
2. This is an application under section 483 of the BNSS, 2023 praying
for granting of bail to the accused applicants in connection with Goalpara
P.S. Case No.83/2025, registered under Section 61(2)/123 BNS read with
Section 22(C)/25/29 of NDPS Act, 1985.
3. The gist of the allegations made in the FIR dated 01.05.2025, filed by
one SI Kiswar Kumar Choudhury before the Goalpara police station is that
while on duty near Bhalukdubi Law College, he along with other staffs
intercepted a motor cycle and on checking, recovered 7,661 Nos. of YABA
tablets from the possession of the accused applicants. On the receipt of
the FIR, Goalpara P.S. Case No.83/2025 was registered under Section
61(2)/123 of BNS read with Section 22(C)/25/29 of NDPS Act, 1985.
4. The bail application filed earlier by the accused applicants vide Bail
Application No.2775/2025 was rejected by this Court vide its order dated
07.11.2025.
5. After completion of the investigation, the police has filed the charge
sheet being charge sheet No.132/2025 dated 31.08.2025, under Section
61(2)/123 of BNS read with Section 22(C)/25/29 of NDPS Act against the
accused applicants, wherein, the prosecution cited 5(five) numbers of
witnesses as prosecution witnesses.
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6. Mr. H.R.A. Choudhury, learned Senior Counsel appearing for the
accused applicants submits that while arresting the accused applicants by
arresting authorities, the mandates of the Section 36 of the BNSS, 2023
have not been followed and therefore, the whole arrest proceeding is
vitiated and the fundamental rights guaranteed to the accused applicants
under Article 21 and 22(1) of the Constitution of India have been violated.
He submits that while arresting the accused applicants, arresting
authorities while preparing the respective arrest memos, neither the
signature of the accused applicants nor any signature of any family
members or any respectable members of the locality where the arrest was
made, were taken in the arrest memos. He submits that while arresting a
person, arresting authority is required to prepare an arrest memo under
Section 36 of the BNSS, 2023, and in the arrest memo, a signature or
attestation of any of the family members of the accused person or of a
respectable person of the locality is required to be obtained in the arrest
memo. He further submits that the arrest memo must contain the
signature of the arrested person. He submits that in the instant case, the
aforesaid provision has not been complied with. He submits that Section
62 of the BNSS, 2023 further requires any arrest made by the police
officer has to be in compliance with the provisions of BNSS or any other
prevailing laws at the time of arrest. He submits that since the arrest has
been made in violation of Section 36 of the BNSS, 2023, on that ground
only, the accused applicants are liable to be released on bail. He referred
the case of D.K. Basu Vs. State of West Bengle reported in (1997) 1
SCC 416, in support of his submission.
7. Ms S.H. Bora, learned Additional Public Prosecutor, on the other hand,
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submits that though no signatures in the arrest memo have been obtained
while arresting the accused applicants, notices under Section 47 and 48 of
BNSS, 2023 have been issued to the accused applicants as well as their
family members at the time of the arrest of the accused applicants and
therefore, there is no prejudice caused to the accused applicants on their
arrests. She submits that Section 37 of the NDPS Act is applicable in the
instant case, since the quantity recovered is of commercial quantity. In
view of aforesaid, she submits that since the accused applicants have
been intimated about their grounds of arrest at the time of their arrests,
the non-compliance of mandates of Section 36 did not prejudice the
accused applicants and therefore, in the instant case, accused applicants
should not be granted bail, at this stage.
8. The Trial Court record in the instant case has been received and the
same is perused. This Court has also heard the submissions made by the
learned counsel appearing for the respective partes.
9. The fundament rights are paramount under the Constitution of India.
The Article 21 provides that “no person shall be deprived of his life or
personal liberty except according to a procedure established by law”.
Personal liberty thus, is a sacred and cherished right under the
Constitution. Article 22 of the Constitution of India, further strengthens
the protection of personal liberty of a person by providing that person
arrested must be informed of the grounds of his arrest at the earliest and
should not be detained without informing him of such grounds. Section 36
of BNSS, 2023 has its roots in Article 21 and 22 of the Constitution of
India which specifically provides for procedure of arrest and duties of the
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officer making such arrest. This procedure being statutory provisions, any
violation of the same makes the arrest in violation of statutory laws.
10. In this connection, Section 36 and Section 62 of the BNSS being
relevant are quoted herein below: –
“36. Procedure of arrest and duties of officer making arrest- Every
police officer while making an arrest shall-
(a) bear and 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) counter signed by the person arrested; and
(c) Informed 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 a time being in force providing for arrest”.
11. A conjoint reading of the aforesaid two Sections makes it clear that a
Memorandum of Arrest is a written document that serves as confirmation
that the individual in question was arrested. In addition to meeting the
essential requirements, it must provide particulars that are specific. A
minimum of one witness is required to vouch for its authenticity. For the
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best possible outcome, this witness ought to be a member of the accused
person’s family and in the event that a family member is unavailable, a
respectable individual of the locality in which the arrest is made may be
called upon to testify as witness. In the second step, of course, the
arrested person is required to counter sign the Arrest Memo himself.
In the event, there is no counter-sign of the accused person in the
arrest memo, the arrest memo becomes non-existent in the eyes of the
law. The purpose of having a counter sign in the arrest memo of the
arrested person is to serve the same as an official and legally recognised
record of an arrest. In absence of the arrest memo, vital evidence of the
arrest of the accused person and that the arrest has been carried out
legally becomes questionable.
12. What is discernible from the aforesaid two sections quoted herein
above is that there is a mandate provided by the aforesaid Section 36 of
BNSS, 2026, that the Arrest Memo has to be signed by a witness; either
he is a member of the family of the arrested person or a respectable
member where the arrest is made. Additionally, the Arrest Memo is
required to be counter signed by the arrested person to show that the
person has been legally arrested. Section 62 provides that no arrest shall
be made except in accordance with the provisions of BNSS, 2023 or any
other law for the time being in force providing for arrest. Therefore, any
arrest that has to be made is mandatorily has to comply with the
provisions and procedure of arrest as laid down in the BNSS, 2023 or any
other law applicable to the case, while making such arrest. Non
compliance of such provisions shall be in violation of the mandatory
provisions which will, in turn, make such arrest illegal. Once an arrest
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becomes illegal, the arrested person shall have an unfettered right to be
set at liberty, i.e., to be released on bail.
13. In the instant case in hand, it is seen that the Arrest Memo does not
contain any signature or attestation of any person, neither of the family
members of the arrested person, nor of any respectable person of the
locality wherein the arrest was made. It is also seen that no counter sign
was taken from the accused applicants or attestation was made by the
accused applicants. This clearly violates the mandates of Section 36 read
with Section 62 of the BNSS, 2023.
14. Taking into account the ratio laid down by the Hon’ble Supreme Court
in the case of D.K. Basu(supra) as well as the procedural mandates laid
down under Section 36 of BNSS, 2023, this Court is of the considered
opinion that there is violation of mandates of Section 36 of the BNSS,
2023, in the instant case while arresting the accused applicants, whereby,
curtaining their fundamental rights guaranteed under Article 21 and 22 of
the Constitution of India.
15. In view of the aforesaid discussion and findings, this Court directs the
accused applicants to be released forthwith on bail on furnishing a bail
bond of Rs.50,000/-(Rupees Fifty Thousand) with 2(two) sureties of like
nature to the satisfaction of learned Special Judge (NDPS), Goalpara
subject to following conditions:
i) That the accused applicants shall appear before the learned trial
court as and when required during trial of the case;
ii) that the accused applicants shall not directly or indirectly make
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acquaint with the facts of the case, so as to dissuade such person
from disclosing such facts before the trial court; and
ii) that the accused applicants shall provide details of their Aadhar
Cards, Driving licences (if any), Pan Cards and passports (if
available), to the learned Special Judge (NDPS), Goalpara, Assam.
16. In view of the aforesaid directions, this bail application stands
disposed of as allowed.
JUDGE
Comparing Assistant
