Pankaj Kumar Vs the Union of India

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GAHC010176732025

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2025:GAU-AS:15381

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

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Case No. : Bail Appln./2594/2025

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PANKAJ KUMAR SON OF SRI RAM B ABU RAY R/O HOUSE NO. 11, NEAR SHANI MANDIR, PATARKUCHI P.O. BASISTHA P.S. BASISTHA, DIST. KAMRUP (M), ASSAM, PIN-781029

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VERSUS

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THE UNION OF INDIA REP.B Y THE NARCOTICS CONTROL BUREAU, GUWAHATI ZONAL UNIT GUWAHATI.

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Advocate for the Petitioner : MR. N N B CHOUDHURY, MS. K DEY

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Advocate for the Respondent : SC, NCB,

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BEFORE

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HONOURABLE MR. JUSTICE ANJAN MONI KALITA

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ORDER

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Date : 13.11.2025

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Heard Mr. N.N.B. Choudhury, learned counsel appearing on behalf of the accused-applicant. Also heard Mr. S. C. Keyal, learned Standing Counsel, NCB,

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representing the respondent.

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2. The instant application has been filed, under Section 483 of the BNSS, 2023, for granting bail to the accused-applicant, who was arrested on 23.06.2025, in connection with NCB Guwahati Crime No. 07/2025, registered under Section 8(c) read with Section 21(C)/29 of the NDPS Act, 1985.

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3. The gist of the allegation as could be seen from the application is that, on 23.06.2025, the officials of NCB, Guwahati Zonal Unit had arrested one Guriya Devi and Manju Devi and seized 0.541 KGs of alleged heroin. It was alleged that the accused-applicant had allegedly assisted the aforesaid Guriya Devi and Manju Devi in the aforesaid offence. With the aforesaid allegation, the accused-applicant was arrested on 23.06.2025 by the NCB officials.

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4. Accordingly, a case was registered as NCB Crime No. 07/2025, under the aforesaid sections and since then, the accused-applicant is in judicial custody till date.

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5. Mr. N.N.B. Choudhury, learned counsel for the accused-applicant submits that the accused-applicant was only informed about the reason of arrest while he was arrested, but, he was not informed about the grounds of his arrest, which is in violation of the fundamental rights of the accused-applicant granted by the Constitution of India. The learned counsel submits that the accused-applicant was arrested merely on suspicion and no such alleged heroin was ever recovered from the possession of the accused-applicant, rather, the alleged heroin was recovered from the co-accused namely, Guriya Devi and Manju Devi. The learned counsel submits that the accused-applicant might have been arrested only with suspicion due to probable implication by the co-accused about his involvement due to certain personal grudge or enmity against the accused-applicant. The learned counsel submits that the statement of the co-accused, under Section 67 of the NDPS Act

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cannot be used against the accused-applicant, which is already settled by the Hon’ble Apex Court in catena of judgments. The learned counsel submits that while arresting the accused-applicant, the NCB officials had not followed the mandates of Sections 47 & 48 of the BNSS as well as the settled principle of law by the Hon’ble Apex Court in that regard.

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6. The learned counsel for the accused-applicant further submits that a bare perusal of the contents of Section 47 of the BNSS, notice issued to the accusedapplicant clearly reveals that no substantial grounds have been stated in the notice. In fact, the accused-applicant was only informed that he was being arrested in connection with the NCB Crime No. 07/2025, under Section 8(c) read with Sections 21(C)/29 of the NDPS Act, 1985, which is non-bailable and also the fact that he would be produced before the Hon’ble Court. The accused-applicant was also intimated that detailed reasons of arrest have been explained to him, in writing. Therefore, the learned counsel submits that since no specific grounds of his arrest have been mentioned in the notice issued under Section 47 of the BNSS, there is a clear violation of the mandates of Section 47 of the BNSS, which is in violation of Articles 22(1) and 21 of the Constitution of India, affecting the personal liberty of the accused-applicant.

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7. The learned counsel for the accused-applicant further submits that there is also a clear non-compliance of Section 48 of the BNSS, as no such notice has been given to the family member or a friend or relative, nominated by the accusedapplicant. The learned counsel submits that on 23.06.2025, after the arrest of the accused-applicant, his wife was supposedly intimated by the NCB officials over the phone without giving sufficient details of the grounds of arrest of the accusedapplicant. In view of the aforesaid also, the learned counsel submits that the mandatory compliance as required under Section 48 of the BNSS, has not been complied with by the arresting authority i.e., the NCB officials.

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8. The learned counsel for the accused-applicant, in his submissions, pointed out to this Court, another vital aspect i.e., the signature of witness available on the memorandum of arrest dated 23.06.2025, which was issued to the accusedapplicant while he was arrested on 23.06.2025. The learned counsel submits that in the column for signature of witness, bears the signature of one Mr. A. Mustafa. The learned counsel submits that Mr. A. Mustafa is, in fact, a Sub-Inspector working with NCB, Guwahati Zonal Unit and the aforesaid A. Mustafa is neither a family member nor a respectable member of the locality or nor an independent witness, when the arrest was made. The learned counsel submits that Section 36 of the BNSS specifically mandates that the memorandum of arrest must be attested by at least one witness, which should be of any family member of the person arrested or a respectable member of the locality where the arrest is made. Since the aforesaid A. Mustafa is neither a family member nor a respectable member of the locality where the arrest is made, the learned counsel submits that the specific mandate of Section 35 of the BNSS has been clearly violated by the arresting authority i.e., the NCB, Guwahati, while arresting the accused-applicant, and that gives the accusedapplicant the right to go on bail on that ground alone.

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9. The learned counsel for the accused-applicant, in support of his arguments has referred to the case of D. K. Basu vs. State of West Bengal , reported in (1997) 1 SCC 416 , which provides that it is desirable that the officer arresting the person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness, who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The learned counsel submits that the principle laid down in the case of D. K. Basu (supra) has flown from Articles 21 and 22(1) of the Constitution of India and the same is required to be strictly followed as mandated in the case. Therefore, the learned counsel submits that in the instant case, as the memorandum of arrest contained the signature of an

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official of the NCB, rather than an attested signature by a member of the family or a respectable person of the locality of the arrested person, the arrest of the accusedapplicant is in violation of the constitutional mandates which illegally curtailed his personal liberty.

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10. As far as the arguments to support violation of Section 47 & 48 of BNSS notices, the learned counsel for the accused-applicant has referred to the cases of (1) Pankaj Bansal vs. Union of India & Others , reported in (2024) 7 SCC 576 , (2) Prabir Purkayastha vs. State (NCT of Delhi) , reported in (2024) 8 SCC 254 and (3) Vihaan Kumar vs. State of Haryana and Another , reported in (2025) SCC OnLine SC 269 .

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11. Referring to the mandates of the aforesaid cases, the learned counsel for the accused-applicant submits that the principles that have been laid down in the aforesaid judicial pronouncements by the Hon’ble Apex Court, are being totally neglected by the NCB officials while arresting the accused-applicant, which is apparent from the contents of Section 47 notice as well as by the fact of intimating the wife of the accused-applicant over the phone. The learned counsel has also referred to several other decisions of the Hon’ble Gauhati High Court wherein, the concerned accused persons, therein, have been granted bail on the ground of noncompliance or inadequate compliance with the provisions pertaining to arrest under Section 47 & 48 of the BNSS, 2023.

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12. Per contra, Mr. S. C. Keyal, learned Standing Counsel, NCB, submits that there has been due compliance in preparation of the memorandum of arrest by the NCB officials while arresting the accused-applicant. The learned counsel submits that the allegation regarding non-compliance of Section 36 of the BNSS is only misconceived and factually incorrect. The learned counsel submits that the accused-applicant was not arrested from any public place or from his residence but,

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he was arrested from the office of the NCB, Guwahati, where he voluntarily appeared pursuant to a lawful notice issued under the NDPS Act, at the place of seizure. The learned counsel submits that as there was no independent witness or member of the locality available within the NCB office, in the aforesaid circumstances, an NCB officer present in the office was made an attesting witness. The learned counsel submits that the accused-applicant himself signed the memorandum of arrest, acknowledging the grounds of his arrest, which clearly established the conscious knowledge of the grounds of arrest of the accusedapplicant. In view of the aforesaid, the learned counsel submits that there is substantial compliance of the mandates of Section 36 of the BNSS and therefore, there is no violation of Articles 21 and 22(1) of the Constitution as well as the seminal principle laid down in the case of D. K. Basu (supra) by the Hon’ble Apex Court.

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13. The learned Standing Counsel submits that the accused-applicant was served with the reasons as well as the grounds of arrest at the time of his arrest, which was duly acknowledged and received by the accused-applicant. The learned counsel further submits that since no family member or relative of the accused-applicant was present at that point of time when he was arrested, notice under Section 48 of the BNSS could not be issued effectively at that point of time. However, the learned counsel submits that the compliance of Section 48 was duly done by allowing the accused-applicant to call his wife over the phone to explain the whole situation as well as his grounds of arrest. The learned counsel further submits that subsequently, on the very next date i.e., on 24.06.2025, an e-mail was sent from the office of the NCB, Guwahati to the Basistha Police Station to intimate the family members, regarding the arrest of the accused-applicant. The learned counsel submits that in addition of the aforesaid e-mail, intimation of arrest under Section 48 of BNSS was issued to the wife of the accused-applicant, which was received by

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the brother-in-law of the accused-applicant. Therefore, the learned counsel submits that the mandates of Sections 47 & 48 of the BNSS, are substantially complied with by the NCB officials while arresting the accused-applicant and the accusedapplicant is no way prejudiced by any non-compliance as alleged by the accusedapplicant.

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14. In this regard, the learned Standing Counsel has referred to the case of State of Karnataka vs. Sri Darshan , reported in (2025) SCC OnLine SC 1702 to submit that mere non-compliance of Section 48 notice of the BNSS may not entitle the accused-applicant to bail and that the Court may also have to comply with the test of prejudice. The learned counsel submits that in the instant case, as the wife of the accused-applicant was immediately, at the time of arrest, was intimated about the grounds of arrest of her husband over the phone, no prejudice, as alleged, has been caused to the accused-applicant. The learned Standing Counsel further referred to the case of Radhika Agarwal vs. Union of India , reported in (2025) 6 SCC 545 , to stress the fact that the Special Acts are enacted to achieve specific purposes and objectives. The power of judicial review in cases of arrest under such Special Acts should be exercised very cautiously and in rare circumstances to balance individual liberty with the interest of justice and of the society at large. Any liberal approach in construing the stringent provisions of the Special Acts may frustrate the very purpose and objective of the Acts. Therefore, the learned Standing Counsel submits that the NDPS Act, being a Special Act having it’s statutory provisions for arrest, in those cases, hyper technical consideration should not be adopted by the Court in adjudicating bail applications. In view of the aforesaid submissions, the learned Standing Counsel submits that taking into account of the fact that the accusedapplicant is no way prejudiced by any of the alleged procedural lapses at the time of his arrest, this Court should not allow the accused-applicant to go on bail at this stage, as the investigation in the matter is yet to be completed.

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15. This Court has gone through the Case Diary that has been submitted by the learned Standing Counsel, NCB as well as the other materials placed before this Court.

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16. It may be relevant at this stage to reproduce Section 36 of BNSS, which is as follows: -

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“ 36. Procedure of arrest and duties of officer making arrest. Every officer while making an arrest shall-

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(a) Bear an accurate, visible and clear identification of his name which will facilitate easy identification;

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(b) Prepare a memorandum of arrest which shall be-

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(i) Attested by at least one witness, who is a member of family of the person arrested or a respectable member of the locality where the arrest is made;

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(ii) Counter signed by the person arrested; and

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(c) Inform the person arrested, unless the memorandum is attested by a member of his family, that he has arrived to have a relative or any other person named by him to be informed of his arrest.”

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17. This Court has gone through the materials available in the Case Diary and has found that the arrest-memo, under Section 36 of the BNSS, neither contains the signature of any family member of the person arrested nor signature of a respectable member of the locality where the arrest was made. The notice under Section 47 of the BNSS also does not specifically provides the grounds of arrest, rather it only provides the information that the accused-applicant was arrested for the mentioned case, which was non-bailable. Therefore, in view of this Court, taking into account the offence allegedly committed, the grounds do not seem to be reasonably provided in the notice under Section 47 of the BNSS, which is apparently found to be in violation of the

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mandates of Section 47 of the BNSS, as well as the law settled by the Hon’ble Apex Court.

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18. Taking reference of the case of Vihaan Kumar (supra) , which specifically provides that communication of the grounds of arrest, in writing, to a friend, relative or such other person, as may be disclosed or nominated by the arrested person is the mandate of Article 22(1) of the Constitution of India, in the instant case, that seems to have been substantially not complied with.

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19. Another fact that needs consideration of this Court is that the accused-applicant has specifically contended that notice under Section 48 of BNSS was never received by any of his friend/relative or other nominated persons. The burden shifts on the prosecution side to show that such notice was actually served on such person.

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20. However, for the contention with regard to non receipt of Section 48 BNSS notice is concerned, it is seen from the record that a telephonic conversation between the accused-applicant and his wife did happen at the time of his arrest. It is also seen from the records that written intimation of arrest was also sent to the wife of the accusedapplicant on 23.06.2025, which was, in fact, received by the brother-in-law of the accused-applicant whose signature is found in the aforesaid notice. Therefore, the contention of the learned counsel for the accused-applicant that there is violation of Section 48 of BNSS is not found to be correct. However, taking into account the facts i.e., the non-compliance of Section 36 as well as Section 47 of the BNSS, which is mandatory in nature as settled by the Hon’ble Apex Court in the cases of D. K. Basu (supra) , Vihaan Kumar (supra) and Prabir Purkayastha (supra) , this Court is of the considered opinion that while arresting the accused-applicant, the mandates of the said law have not been complied with, which violates the personal liberty granted under Articles 21 and 22(1) of the Constitution of India.

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21. In view of the aforesaid reasons mentioned above, this Court is of the considered view that the accused-applicant is entitled to be released on bail on the ground of failure

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of the arresting authority, i.e. the NCB, Guwahati, to comply with the mandatory requirements under Section 36 and 47 of the BNSS, 2023. Accordingly, the accusedapplicant is directed to be released on bail on furnishing a bail bond of Rs. 2,00,000/(Rupees Two Lakhs only), with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) to the satisfaction of the learned Trial Court, subject to the following conditions:-

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(1) That the accused-applicant shall cooperate in the trial and shall appear before the Trial Court as and when required by the Trial Court;

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(2) That the accused-applicant shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts from the trial pending against the accused-applicant;

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(3) That the accused-applicant shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; if the same are not seized by the NCB officials.

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(4) That the accused-applicant shall not misuse his liberty by indulging in any illegal activities including any activities of peddling Narcotics Drugs.

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22. With the above observations and directions, this bail application is accordingly, disposed of. Case Diary is to be sent back immediately.

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Pankaj Kumar v. the Union of India

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Pankaj Kumar v. the Union of India

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