Disposed

Ashin Khumba and Anr. v. the State of Assam

Gauhati HC20 Aug 2026Bail Appln./1226/2026

Case brief

AI extract

What is this about?

Seven Gauhati HC bail applications (six NDPS, one POCSO) commonly disposed on unsigned arrest memos: s.36 BNSS attestation held mandatory (Arts 21/22(1)); ss.36, 47, 48 BNSS independently required; concurs with BA 1199/2026; contrary line BA 887/2026, BA 4068/2025 (Darshan); questions referred to Chief Justice for larger Bench; interim bail declined; petitions disposed.

What the court decided

AI extract

Ashin Khumba and Anr. Vs the State of Assam — Child Sexual Offences (POCSO) | Gauhati HC (2026)

Page No.# 1/27

GAHC010092472026

2026:GAU-AS:9444

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

¶5

Case No. : Bail Appln./1239/2026

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INJAMAMUL HOQUE ALIAS INJAMUL HOQUE SON OF JAINUL HOQUE

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R/O VILL KARTIKTILLA, PO KANAIBAZAR, PS PATHARKANDI, DIST SRIBHUMI, ASSAM

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VERSUS

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STATE OF ASSAM

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TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM

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Advocate for the Petitioner : MR SARFRAZ NAWAZ, A S CHOUDHURY

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Advocate for the Respondent : PP, ASSAM,

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Linked Case : Bail Appln./717/2026

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JOYNAL UDDIN ALIAS JOYNAL HUSSAIN S/O ALA UDDIN R/O VILL- BEDAMOHAKAL P.S. BADARPUR DIST. SRIBHUMI ASSAM

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VERSUS

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Page No.# 2/27

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THE STATE OF ASSAM REP BY THE PP ASSAM

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-----------Advocate for : MR. A AHMED Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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Linked Case : Bail Appln./1468/2026

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SHRI DIPAK SARMAH ALIAS SAIKIA S/O RATNESWAR SARMAH R/O VILLAGE LORIDANGA P.O. LORIDANGA P.S. BIHPURIA DISTRICT LAKHIMPUR ASSAM PIN-784161.

¶21

VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP ASSAM 2:SMTI MOON BORA W/O BOLU BORA R/O VILLAGE LORIDANGA P.O. LORIDANGA P.S. BIHPURIA DISTRICT LAKHIMPUR ASSAM PIN-784161. -----------Advocate for : MR. P BORDOLOI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR

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Linked Case : Bail Appln./748/2026

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MD FEROZ ALIAS MD FEROZ KHAN

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Page No.# 3/27

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S/O MD. ABDUL ZABAR R/O KEIRAO MAKTING MAYAL LEIKAEI P.S. IRILBUNG DIST. IMPHAL EAST MANIPUR

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VERSUS

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THE STATE OF ASSAM REP BY THE PP ASSAM

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-----------Advocate for : MOTIUR RAHMAN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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Linked Case : Bail Appln./1282/2026

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NAJRUL ISLAM S/O ABDUL SALAM RESIDENT OF SALIMARI P.S. KALGACHIA DIST. BARPETA ASSAM INDIA C/NO. 8133046197

¶32

VERSUS

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THE STATE OF ASSAM REPRESENTED BY THE PP ASSAM

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-----------Advocate for : J ABBASI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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Linked Case : Bail Appln./1180/2026

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Page No.# 4/27

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RAHENA BEGUM W/O KABIR UDDIN R/O ERALIGOOL PT.I P.S. PATHARKANDI DIST. SRIBHUMI ASSAM.

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VERSUS

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THE STATE OF ASSAM REP BY THE PP ASSAM

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-----------Advocate for : MR. A AHMED Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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Linked Case : Bail Appln./1226/2026

¶42

ASHIN KHUMBA AND ANR S/O LATE AREI KHUMBA OF VILL. BAKUA P.S. NONEY DIST. NONOEY MANIPUR PIN 2: K NAMTHUIDIANG RONGMEI S/O AJIN RONGMEI OF VILL. LUNAGKAO P.S. KAIMAI DIST. TAMENGLONG MANIPUR PIN VERSUS

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THE STATE OF ASSAM REPRESENTED BY THE PP ASSAM.

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Page No.# 5/27

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Advocate for : MR. S C BISWAS Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

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BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS

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ORDER

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Date : 02.07.2026

¶50

All the above bail applications are being taken up together and disposed of by this common order, as these involve common issues on law points.

¶51

Before proceeding further, the brief facts of each of the bail petitions and the main contentions of both sides therein are enumerated in the next few paragraphs.

¶52

In Bail Appln. 1239/2026

¶53

Heard Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Addl. P.P. appearing for the State respondents.

¶54

The instant bail application has been filed by the petitioner, namely, Injamamul Hoque @ Injamul Hoque, under section 483 BNSS, seeking regular bail in connection with Patharkhandi P.S. Case No. 20/2026 under Section 22(c)/25/29 of the NDPS Act, 1985. The petitioner was arrested on 27.02.2026 and presently in judicial custody.

¶55

The gist of the allegations in the FIR was about recovery of

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8.455 kgs of Yaba tablets from two vehicles being MZ-01L-1699 and

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Page No.# 6/27

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AS-10G-3822. The case is at the stage of investigation.

¶59

The primary contention of the petitioner's side is that the arrest memo at the time of arrest of the petitioners does not bear the signature of any witnesses.

¶60

Mr. S. Nawaz, learned counsel for the petitioner, submits that in terms of the law laid down in D.K. Basu Vs. State of West Bengal AIR 1997 SC 610 , it is mandatory to comply with the said requirement under Section 36 BNSS (earlier Section 41B Cr.P.C) and that it has been held in D.K. Basu (Supra) that such compliance flows from Article 21 and 22(1) of the Constitution of India, failing which the arrest shall be vitiated.

¶61

Referring to the case of Directorate of Enforcement vs. Subhash Sharma , reported in 2025 SCC OnLine SC 240 (para 8), it is submitted by the learned counsel, Mr. Nawaz, that violation of arrest procedures which constitute infraction of Article 21 and 22 of the Constitution would vitiate the arrest and entitle accused to be granted bail.

¶62

On the other hand, the learned Addl. P.P., Mr. Borthakur, submits that notices under Sections 47 and 48 BNSS have been duly complied with and that the accused and the family members were properly briefed about the fact of arrest and the grounds thereof and therefore, any infirmity in the arrest memo may not be taken as vitiating the arrest altogether.

¶63

In Bail Appln. 1180/2026

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Heard Mr. A. Ahmed, learned counsel for the petitioner. Also

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Page No.# 7/27

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heard Mr. P. Borthakur, learned Addl. P.P. appearing for the State.

¶67

The instant bail application has been filed by the petitioner, namely, Rehena Begum, under section 483 BNSS, seeking regular bail in connection with Patharkhandi P.S. Case No. 20/2026 under Section 22(c)/25/29 of the NDPS Act, 1985. The petitioner was arrested on 27.02.2026 and presently in judicial custody.

¶68

The gist of the allegations in the FIR was about recovery of 8.455 kgs of Yaba tablets from two vehicles being MZ-01L-1699 and AS-10G-3822. The case is at the stage of investigation.

¶69

The primary contention of the petitioner's side is that the arrest memo at the time of arrest of the petitioners does not bear the signature of any witnesses.

¶70

Mr. A. Ahmed, learned counsel for the petitioner, submits that in terms of the law laid down in D.K. Basu Vs. State of West Bengal AIR 1997 SC 610 , it is mandatory to comply with the said requirement under Section 36 BNSS (earlier Section 41B Cr.P.C) and that it has been held in D.K. Basu (Supra) that such compliance flows from Article 21 and 22 (1) of the Constitution of India, failing which the arrest shall be vitiated.

¶71

Referring to the case of Subhash Sharma (supra), it is submitted by the learned counsel, Mr. Ahmed, that violation of arrest procedures which constitute infraction of Article 21 and 22(1) of the Constitution would vitiate the arrest and entitle the accused to bail.

¶72

On the other hand, the learned Addl. P.P., Mr. Borthakur,

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Page No.# 8/27

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submits that notices under Sections 47 and 48 BNSS have been duly complied with and that the accused and the family members were properly briefed about the fact of arrest and the grounds thereof and therefore, any infirmity in the arrest memo may not be taken as vitiating the arrest altogether.

¶75

In Bail Appln. 1226/2026

¶76

Heard Mr. S. C. Biswas, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Addl. P.P. appearing for the State.

¶77

The instant bail application has been filed by the two petitioners, namely, Ashin Khumba and K. Namthuidiang Rongmei, under section 483 BNSS, who are seeking regular bail in connection with Jihirghat P.S. Case No. 08/2026 under Section 22(c)/25/29 of the NDPS Act, 1985, corresponding to NDPS Case No. 46/2026. Both of them were arrested on 22.02.2026 and presently in judicial custody.

¶78

The gist of the allegations was that on the basis of source information, Naka checking was laid and the accused petitioners were apprehended along with a Bolero Pick-up vehicle bearing registration No. AS-11-EC-1361. Upon search, commercial quantity of suspected Yaba tablets being psychotropic substances were found and seized. The investigation of the case resulted in a charge-sheet and the Special NDPS Case No. 46 of 2026 was registered and presently pending before the learned Special Judge, Cachar at the stage of consideration of charge.

¶79

Page No.# 9/27

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Mr. S.C. Biswas, the learned counsel for the petitioner primarily contends and submits that the arrest memo under section 36 of B.N.S.S. at the time of arrest of the accused persons did not bear the signature of any witnesses or persons of the locality.

¶81

It is submitted that the said deficiency in the arrest memo vitiated the arrests of the accused petitioners and therefore, they are liable to be enlarged on bail at this stage. He also submits that though grounds of arrest are narrated in notices under Section 47 and 48 B.N.S.S., but the grounds are in English and Hindi which are not understood by the accused petitioners. It is submitted that, on that ground also the arrest is vitiated and petitioners liable to be granted bail.

¶82

On the other hand, the prosecution submits that there has been due compliance with notices under Sections 47 and 48 B.N.S.S. Grounds of arrest in sufficient detail have been conveyed to the arrested person as well as family members and that the petitioners have been fully informed about their arrest as well as the grounds of arrest.

¶83

It is also submitted that as the contraband falls in the bracket of commercial quantity, the rigors of Section 37 of the NDPS Act would be applicable and that without fulfillment of the twin conditions, bail cannot be granted.

¶84

The scanned TCR as called for has been received.

¶85

In Bail Appln.1282/2026

¶86

Heard Mr. J. Abbasi, learned counsel for the petitioner. Also

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Page No.# 10/27

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heard Mr. P. Borthakur, learned Addl. P.P. appearing for the State.

¶89

This instant bail application has been filed under Section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, whereby the accused petitioner namely, Najrul Islam , has prayed for bail in connection with Bazaricherra P.S. Case No. 18/2026 under Section 22(c)/25/29 of NDPS Act. The petitioner was arrested on 15.04.2026.

¶90

The gist of the allegation in the FIR is that during a naka checking, one truck bearing registration No. AS-26-AC-1102 being driven by the petitioner was apprehended and upon search, 95 cartons containing 14,250 bottles of Codeine phosphate and Chlorpheniramine Maleate syrup were found and recovered. The case is at the stage of investigation.

¶91

The case diary has called for, has been received.

¶92

The primary contention of the petitioner's side is that the arrest memo under Section 36 of the BNSS does not bear the signature of any family member or other witness of the locality and therefore, the arrest is vitiated.

¶93

Mr. Abbasi, the learned counsel for the petitioner has referred to one bail order of this Court being order dated 17.12.2025 passed in Bail Appln. 3712/2025, where a coordinate Bench of this Court was pleased to grant bail to the accused for the arrest being initiated owing to non-compliance with the aforesaid stipulation in the arrest memo of not taking any signature of family member or

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Page No.# 11/27

¶95

witness of the locality.

¶96

It is submitted by the learned counsel that compliance with the notices under Section 47 and 48 of the BNSS would not rectify the defect in the arrest memo of not having signature of witness or a family member.

¶97

On the other hand, the prosecution contends that in view of the proper compliance with the notices under Section 47 and 48 BNSS the petitioner and his family members were well informed about the arrest and the grounds therein. Referring to the decision of State of Punjab v. Balraj Singh a.k.a. Bhilna 2026-INSC-618 , the prosecution contends that the rigors of section 37 would be applicable in view of the large quantity of psychotropic substances being recovered falling in the bracket of commercial quantity and therefore, without fulfilling the twin conditions of Section 37 of the NDPS Act, bail cannot be granted.

¶98

In Bail Appln. 1468/2026

¶99

Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State.

¶100

In this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Dipak Sarmah @ Saikia, has prayed for bail in connection with Special (POCSO) Case No. 124/2025 under Section 75 of BNS, 2023 r/w Section 10 of POCSO Act, 2012, pending before the learned

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Page No.# 12/27

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Special Judge (POCSO), Lakhimpur, North Lakhimpur.

¶103

The petitioner was arrested on 28.05.2025.

¶104

The gist of the allegations in the FIR dated 27.05.2025 is that on that date, in the night, her 11-year-old daughter and mother-inlaw were in the house and when mother-in-law left the room, the accused entered and touched the informant's minor daughter's chest, pressed her breast and inserted his finger into her private parts before fleeing the house. Subsequently, the informant was conveyed to by the minor victim about what had happened.

¶105

After completion of investigation, the case was charge-sheeted resulting in registration of special POCSO Case No. 124 of 2025 and stated to be at the stage of trial before the court of the learned Special Judge, Lakhimpur, North Lakhimpur.

¶106

The primary contention of the learned counsel for the petitioner is that the arrest memo under section 36 BNSS does not bear the signature of any witnesses or family member of the accused and therefore, arrest is vitiated. It is also submitted that compliance with notices under section 47 and 48 BNSS cannot compensate for the infirmity in notice under Section 36. He also refers to Section 62 of BNSS. Further, referring to the decision of the Hon’ble Supreme Court in D.K. Basu, (supra) and also some decisions of co-ordinate Bench of this Court – the learned counsel submits that such non-compliance can be taken as a violation of

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constitutional provision, thereby entitling the accused to bail.

¶109

On the other hand, the learned Additional Public Prosecutor submits that all the arrest procedures have been complied with and that notices under Section 47 and section 48 are in sufficient detail to inform the accused as well as family members about the arrest as well as grounds thereof. The learned Additional Public Prosecutor submits that the allegations are serious pertaining to sexual assault of a minor girl of 10 years and trial is also in progress.

¶110

The scanned TCR is called for as received.

¶111

In Bail Appln. 717/2026

¶112

Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State.

¶113

In this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Joynal Uddin @ Joynal Hussain, has prayed for bail in connection with Special (NDPS) Case No. 60/2025 (arising out Karimganj P.S. Case No. 250/2025 ) u/s 21(c)/25/29 of NDPS, 1985, pending before the learned Sessions Judge, Sribhumi.

¶114

The petitioner was arrested on 22.05.2025.

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Page No.# 14/27

¶116

An FIR was lodged on 21.05.2025. The gist of the allegation is that on 21.05.2025, an information was received from source that one truck was transporting contraband and the said truck was being escorted by another truck. The numbers of the truck were respectively AS-26-AC-0816 and AS-26-AC-0663, travelling from Badarpur to Patharkandi via Sribhumi bypass. Accordingly, a GD entry was made and the police team laid a naka checking. During the course of the naka checking, the target vehicle, which was a sixwheeler Ashok Leyland truck bearing registration No. AS-26AC-0816, was intercepted and the other truck purportedly escorting the previous truck was also detained. Upon searching, 1236.35 grams of suspected heroin were seized. The present accused was stated to be driving the said truck where the contraband was found.

¶117

After completion of investigation, the case was chargesheeted, whereupon Special NDPS Case No. 60 of 2025 was registered and presently stated to be poised for consideration of charge before the Court of the learned Sessions Judge, Sribhumi.

¶118

Mr. Ahmed, learned counsel for the petitioner submits that the arrest memo under Section 36 of the BNSS does not bear the signature of the accused as well as any witnesses. He contends that the same constitutes a fatal infirmity in the arrest procedure and therefore, the petitioner should be granted bail on this ground. It is also submitted that in view of such infirmity in the arrest memo, any compliance with Sections 47 and 48 BNSS would not rectify the said

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defect. The petitioner side has referred to a decision of this Court dated 17-12-2025, passed in BA/3804/2025 and another order dated 19.2.2026, passed in BA/3775/2025, in support of its contentions for bail as narrated above.

¶121

On the other hand, the learned Additional Public Prosecutor opposing the bail, submits that the petitioner and his family members have been properly noticed about the fact of arrest and the grounds thereof and therefore, there is no infirmity in the arrest procedure to entitle the petitioner to bail. It is also submitted that the alleged offences are of a serious nature and the quantity of the contraband falls in the commercial bracket due to which the twin conditions of Section 37 of the NDPS Act have to be fulfilled before the petitioner can be granted bail.

¶122

The scanned TCR is available.

¶123

In Bail Appln. 748/2026

¶124

Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State.

¶125

In this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Md Feroz @ Md Feroz Khan, has prayed for bail in connection with Dillai Case No. 65/2025 under Section 21(c)/25/29 of NDPS Act,

¶126

Page No.# 16/27

¶127

1985 r/w Section 61(2)/123 of BNS, 2023.

¶128

The gist of the allegation in the FIR is that upon secret information, a naka check was laid at the stated area and thereafter, one Maruti Suzuki Swift vehicle bearing No. AR-01-BA-8774 was apprehended and the petitioner along with other co-accused were found present in the vehicle and upon search of the vehicle, 1.520 kgs of morphine was found inside the tube of spare tyre of the vehicle.

¶129

The investigation has stood completed in the case resulting in a charge-sheet and accordingly scanned TCR was called for.

¶130

The primary contention of the learned counsel for the petitioner is that the arrest memo does not bear the signature of any witness or family member and therefore, the arrest is vitiated. He also submits that no acknowledgement was taken from the nominated person. It is submitted by the learned counsel that the notices under section 36 and section 48 BNSS stand on different footings. The learned counsel submits that the arrest was vitiated and therefore, the petitioner should be granted leave.

¶131

On the other hand, the learned Additional Public Prosecutor submits that the petitioner and the co-accused was caught redhanded along with commercial quantity of psychotropic substances and the rigors of Section 37 NDPS apply. It is submitted that the petitioner and their family members have been duly informed about

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the arrest and sufficient grounds regarding the arrest have been intimated to the arrested person as well as the family member. It is submitted by the prosecution that there is no infirmity in the arrest procedure.

¶134

DISCUSSION

¶135

Thus, in these bail petitions, the petitioners have contended that there is non-compliance with the provisions under Section 36 BNSS inasmuch as at the time of arrest of the accused petitioners, the signature of witnesses or family members was not taken. In one instance, the arrest memo is stated to be bereft of any signatures at all. It has been contended that the said infirmity in the arrest memo constitutes a violation of the constitutional provisions under Article 21/22 and therefore, the arrest would stand vitiated, thereby entitling the accused to bail. Another aspect contended is that if the arrest memo suffers from such an infirmity, then compliance with Section 48 BNSS by way of giving information to the family members of the arrested accused - would not cure the infirmity in the arrest memo under section 36 BNSS.

¶136

Thus, the following two points arise for consideration: -

¶137

(i) If the arrest memo under Section 36 BNSS does not contain signatures of witnesses, whether the same would vitiate the arrest to the point of entitling the petitioner to bail?

¶138

(ii) If the information about arrest and grounds thereof have been intimated to the family member in compliance with Section 48 BNSS - whether in that situation, not having signatures of any witnesses, including family members on the arrest memo under Section 36 BNSS - would constitute a fatal

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¶140

infirmity, entitling the accused to bail?

¶141

As noticed above, the learned counsels for the petitioners have contended that any such infirmity in the arrest memo would constitute a fatal infirmity and violation of constitutional provisions and thereby, the accused should be entitled to be granted bail. The learned counsels for the petitioners have further submitted that even if there is compliance under Section 48 BNSS, such compliance would not substitute for the compliance under Section 36 BNSS.

¶142

On the other hand, the prosecution has contended that if the arrested person and his family members have received information regarding the arrest and the grounds thereof, then even if there is some infirmity on the above stated lines in the arrest memo under Section 36 BNSS - the same would not constitute a fatal infirmity to entitle the accused to bail.

¶143

From the submissions of both the sides in these bail applications and the case laws cited - it appears that there are conflicting decisions on these points by coordinate Benches of this Court.

¶144

In Bail Appln. No. 3804/2025, disposed of vide order dated 17.12.2025, a coordinate Bench of this Court has taken the view that in the absence of signature of witnesses or a member of the family of the arrested accused on the arrest memo under Section 36 BNSS, the arrest would be vitiated, constituting violation of fundamental rights and therefore, the accused would be liable to be released on bail. Para nos.12, 14, 15 and 16 of the said order may be

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Page No.# 19/27

¶146

reproduced hereinbelow:-

¶147

“12. What is discernable from the aforesaid two sections is that there is mandate provided by the aforesaid section of 36 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. Section 62 provides that no arrest shall be made except in accordance with the provisions of BNSS 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 while making such arrest. Non compliance of such provisions will be in violation of the mandatory provisions which will in turn make such arrest illegal. Once an arrest becomes illegal, the arrested person shall have an unfettered right to be set at liberty i.e. to be released on bail.

¶148

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 a member of the family of the arrested person or of any respectable member of the locality wherein the arrest was made. This clearly violates the mandates of Section 36 read with Section 62 of the BNSS, 2023.

¶149

In view of the aforesaid, this Court is of the considered opinion that the rigours of Section 37 of the NDPS Act shall not be applicable in a case wherein the initial arrest itself is rendered illegal due to violation of Section 36 of the BNSS, 2023.

¶150

In view of the ratio laid down by the Hon’ble Apex Court in the case of D. K. Basu (Supra) as well as the procedural mandates laid down under Section 36 of the BNSS, 2023, this Court is of the considered opinion that there is a violation of Section 36 of the BNSS, 2023 in the instant case while arresting the accused applicant whereby curtailing their fundamental rights guaranteed under Article 21 and 22 of the Constitution of India.”

¶151

Page No.# 20/27

¶152

In Bail Appln. No. 3650 of 2025, disposed of vide order dated 20.01.2026 also, a coordinate Bench of this Court took a similar view and held such compliance with arrest memo under Section 36 BNSS to be mandatory, failing which the arrest would be vitiated. The Court held that signature of witnesses or family member on the arrest memo is mandatory requirement and referring to the case of D. K. Basu, (Supra), the Court was of the view that these statutory provisions are intertwined with Article 21/22 of the Constitution of India. The Court also held that the rigors of provision like Section 37 of the NDPS would be applicable only if the mandatory procedural requirement of Section 36 BNSS is followed. The relevant Para nos.19, 20, 22 and 23 of that order may be reproduced hereinbelow: -

¶153

“19. The question is as to whether the aforesaid provision is a mandatory provision or a directory provision. The submission of learned Additional Public Prosecutor that since as per Section 36(c) of BNSS, 2023, the arresting Police Officer is required to inform the person arrested that he has a right to have a relative or a friend or other person named by him to be informed of his arrest in case the memorandum is not attested by his family members, itself shows that the requirement of attestation by one of the family members in the memorandum of arrest is not mandatory, is not a convincing submission and hence, not acceptable to this court.

¶154

On a careful perusal of the Section 36 (c) of the BNSS, 2023 reveals that the said clause would become operational only if the memorandum of arrest is not attested by one of the family members of the person arrested. However, as per Section 36 (b) (i) of the BNSS, 2023, apart from family members of the person arrested, any other

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respectable member of locality where the arrest is made may also attest the memorandum of arrest. Only because of the fact that the Section 36 (c) BNSS, 2023 mandates the arresting Police Officer to inform the arrested person regarding his right to have a relative or a friend or other person named by him to be informed of his arrest does not dilute the requirement of attestation of the memorandum of arrest by at least one witness as provided in Section 36 (b) (i) of the BNSS, 2023.

¶157

The Apex Court in the case of “D. K. Basu Vs. State of Bengal” (Supra), has observed that the guidelines issued by it in the said judgment including the guideline No.2, which corresponds to the requirement of preparing an arrest memo and obtaining signatures of at least one witness thereon apart from same being countersigned by the arrestee flows from Article 21 and 22 (1) of the Constitution and needs to be strictly followed.

¶158

The aforesaid observation of the Apex code in the D. K. Basu's case leaves no room for doubt that the aforesaid procedural requirement as contained in Section 36 (b) (i) of the BNSS, 2023 has emanated from Article 21 of the Constitution of India and are mandatory in nature. This court is of the view that Section 36 and Section 62 of BNSS, 2023 are only statutory exposition of constitutional norm provided under Article 21 of the Constitution of India, hence, same cannot be overridden merely because of the presence of a non-obstante clause in Section 37 of the NDPS Act, 1985.”

¶159

Similar view was taken in Bail Appln. No. 3775/2025, disposed of vide order dated 19.02.2026, holding compliance with such provisions under section 36 BNSS to be mandatory. Similar views were also taken in Bail Appln. No. 436/2026 (disposed of vide order dated 15.05.2026) and Bail Appln. No. 324/2026 (disposed of vide order dated 13-03-2026).

¶160

Page No.# 22/27

¶161

In Bail Appln. No. 1199/2026, disposed of vide order dated 25.05.2026, a coordinate Bench of this Court addressed the question as to whether compliance with Section 48 would fulfill the mandate of notice under Section 36 BNSS, if the said arrest memo under Section 36 BNSS is not signed by any witness or family member. Answering the said question, the coordinate Bench held that Section 36 and 48 of the BNSS have to be independently complied with. The relevant para 11 and 25 of the said order is reproduced hereinbelow:-

¶162

“11. Now the question arises as to whether issuance of a notice under Section 48 of the BNSS, 2023 at the time of arrest of an accused person shall suffice the mandates of section 36 of the provisions of the BNSS, 2023 though there is no counter-sign or attestation by any witness or any family member of the accused arrested person?

¶163

Therefore, a combined reading of the aforesaid Sections of 36, 48 & 62 makes it clear that while arresting an accused person, the provisions of Section 36 as well as Section 48 have to be independently complied with. There is no exception which has been curved out from Section 36, providing that in the event of compliance of Section 48, the requirement of attestation of at least one witness, who is a family member of the arrested person or a respectable member of the locality where the arrest is made is exempted. Therefore, statutory provisions of Section 36 of BNSS, 2023 cannot be said to be negated by compliance of provisions of Section 48 of BNSS, 2023.”

¶164

However, in Bail Appln. No. 887/2026 disposed of dated 23.04.2026, a contrary view was taken and it was held that the particulars regarding date, time, place of arrest if communicated to the family member or friend or nominated person by the notice

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dated notice under Section 48 BNSS - the said purpose would be served. The relevant para nos. 12, 13 and 14 may be reproduced hereinbelow:-

¶167

“12. The purpose of the arrest memo under Section 36 BNSS is that it is the formal record of the deprivation of the liberty of the arrestee, and its primary purpose is to provide legal accountability for the arrest itself. Therefore, preparation of the memorandum of arrest mentioning the date, time, place of arrest as well as the place where the petitioner is being detained are all mandatory requirements of law. The necessity of taking the signatures of witnesses of the kind mentioned in Section 36 on the arrest memo is obviously an act of attestation of the particulars mentioned in the memo of arrest. That being the position of law, if the said particulars as available in the arrest memo with regard to date, time, and place of arrest, etc., are communicated to the family member/friends/nominated person by way of a notice under Section 48 BNSS, the same purpose is served.

¶168

In the instant case, there is no dispute that the notice under Section 48 BNS, BNSS, has been duly served upon the wife of the arrestee, mentioning the particulars of the arrestee and also mentioning about the date and place of arrest, as well as the place where he was being held, that is Nilambazar PS.

¶169

What Clause (c) of Section 36 BNSS requires is that if the arrest memo is not signed/attested by a member of his family, then he is to be informed 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. This requirement stands duly complied as the arresting authority has itself informed the wife of the arrestee about his

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arrest by way of the notice under Section 48 BNSS.”

¶172

A similar contrary view was taken in the order dated 20.01.2026 passed in Bail Appln. No. 4068/2025. The relevant para14 may be reproduced hereinbelow:-

¶173

“14. In the case of State of Karnataka vs Sri Darshan Etc. reported in 2025 SCC OnLine SC 1702, it has been observed that the compliance of the requirement under Sections 47 & 48 of the BNSS, 2023 is sufficient unless demonstrable prejudice is shown. Accordingly, it is seen that no prejudice has been caused to the present accused petitioners only because of non-obtaining the signature of family members or relatives of the accused petitioners, complying under Section 36(b) of the BNSS, 2023, wherein there are sufficient compliance of Sections 47 & 48 of the BNSS, 2023, whereby family members or relatives of the accused petitioners were duly intimated regarding their arrest.”

¶174

The approach of the Court in Bail Appln No.1231/2026 vide order dated 11.06.2026 also aligns with the contrary position taken on this point in the aforementioned decisions of coordinate Bench of this Court.

¶175

In the case of D.K. Basu (supra), Hon’ble Apex Court summarized the directions in para 35 and para 35(2) thereof may be reproduced hereinbelow:-

¶176

“35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

¶177

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by at least one witness.”

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¶179

The Court after giving these directions clearly held that the requirements flow from Articles 21 and 22(1) of the Constitution. The relevant para nos. 37 and 38 may also be reproduced hereinbelow:-

¶180

“37. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

¶181

These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.”

¶182

The aforesaid direction given in D.K. Basu (supra ) was statutorily incorporated in the Cr.P.C by way of Section 41B and the same has continued as Section 36 in BNSS. It may also be mentioned herein that the provisions of Section 50A Cr.P.C (Section 48 BNSS) was incorporated in the statute before the incorporation of Section 41B (Section 36 BNSS). Thus, when 41B Cr.P.C. (section 36 BNSS) was incorporated in the statute, the legislature was aware of the existence of Section 50A (section 48 BNSS).

¶183

In the case of Vihaan Kumar Vs. State of Haryana, reported in (2025) SCC Online SC 269 , it has been clearly laid down by the Hon’ble Supreme Court that compliance with the notices under Sections 47 and 48 BNSS is mandatory in nature, failing which the arrest will be vitiated. At the same time, the mandatory nature of attestation of the arrest memo as held in D.K. Basu (supra) still holds the field and is the mandate of law.

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¶185

Therefore, I am of the considered view that compliance with the requirements of the arrest memo under Section 36 BNSS is mandatory, failing which the fundamental rights under Article 21 and 22(1) would be violated and consequently, the detention of the accused person would become untenable, requiring him to be granted bail.

¶186

Further, I am also of the considered view that compliance with Sections 36, 47 and 48 of the BNSS do not substitute for one another and that the compliance of each of these provisions is required in a standalone manner to satisfy the mandate of Article 21 and 22(1) of the Constitution of India, in terms of the laws laid down by the Hon’ble Supreme Court. In this context, I respectfully concur with the order dated 25.05.2026 passed by a Coordinate Bench of this Court in Bail Appln. No. 1199 of 2026 (para-25), which is again reproduced hereinbelow:-

¶187

“25. Therefore, a combined reading of the aforesaid Sections of 36, 48 & 62 makes it clear that while arresting an accused person, the provisions of Section 36 as well as Section 48 have to be independently complied with. There is no exception which has been curved out from Section 36, providing that in the event of compliance of Section 48, the requirement of attestation of at least one witness, who is a family member of the arrested person or a respectable member of the locality where the arrest is made is exempted. Therefore, statutory provisions of Section 36 of BNSS, 2023 cannot be said to be negated by compliance of provisions of Section 48 of BNSS, 2023.”

¶188

Now, as it is clear that there are differing viewpoints of coordinate Benches of this Court on the twin issues flagged in the

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earlier part of the order, the matter perhaps needs to be placed before Hon’ble the Chief Justice for constituting a larger Bench to settle these questions of law. In view of the differing positions of Coordinate Benches on these principles, there could be some uncertainty in the application of the principles in the Courts under the jurisdiction of this Court. Hence, it may be desirable to address the same by a larger Bench.

¶191

Accordingly, in the facts and circumstances and in backdrop of the above discussion, the bail petitions may be placed before Hon’ble the Chief Justice for any direction by his Lordship.

¶192

As the issues have been requested to be placed before Hon’ble the Chief Justice and in the event of Constitution of a larger Bench, the same would be dealt into by such a Bench and also considering that the alleged offences in these bail petitions pertain to serious matters such as drug trafficking, etc. - therefore, despite expressing my view on the points, I am not inclined to proceed to allow the prayer of the petitioners for interim bail.

¶193

Any such prayer may be placed before a larger Bench, if constituted.

¶194

The instant bail petitions stand disposed of on the aforesaid terms.

¶195

Return back the case diaries.

¶196

JUDGE Comparing Assistant

Ashin Khumba and Anr. v. the State of Assam

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Ashin Khumba and Anr. v. the State of Assam

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