Sh. Malsawmthara Vs The State of Mizoram

3. The case of the petitioner is that an FIR was lodged on 28.11.2025, wherein it was stated that the police personnel received the information about the sale of Methamphetamine tablets within the Aizawl area. It was further stated that they received the information that a seller known as Biaka, A.K Erika was selling drugs at a particular place. The police, on receipt of the information, contacted the said Sh. Biaka and on meeting him, were apprised that some contraband would be delivered by his accomplice. Thereafter , on the instruction of Sh. Biaka, the police personnel proceeded to Falkawn and, on arrival, arrested both the petitioner and the co-accused. It was stated by the police personnel that the petitioner was a carrier of the consignment and had attempted to sell the contraband , and in the process, the police personnel intercepted the vehicle and arrested the petitioner and the other accused person, as stated above

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4. The learned counsel for the petitioner has taken three grounds for bail of the petitioner. The first ground is that there is a violation of Section 36 of the BNSS, 2023. She submits that under Section 36 of the BNSS, 2023, it is provided that the police officer should prepare a memorandum of arrest while making the arrest of an accused person and, in the said memorandum, the

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attestation of at least one witness, who is either a member of the family or a respectable person of the locality, should be present.

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5. She submits that the memorandum of arrest was prepared by the police officer, but the same was not attested by any such witness as provided under Section 36 of the BNSS, 2023.

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6. The second ground raised by the learned counsel for the petitioner is that there is violation of Section 47 of the BNSS, 2023, which provides that grounds of arrest should be given to the person arrested which would include the details of the offence charged with the accused person. She submits that although a notice under Section 47 BNSS was given to the petitioner but the said notice did not include the details of the offence under which the petitioner was arrested.

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7. The learned counsel has taken the third ground for releasing the petitioner on bail on the ground that there is a violation of Section 48 of the BNSS, 2023. She submits that the relative of the accused person was not informed of the petitioner's arrest in writing. She also submits that although a notice under Section 48 of the BNSS, 2023 was prepared to be served upon the relative of

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the petitioner, the same was not served in writing. She also submits that the information about the arrest of the accused person, i.e. the petitioner, was given to the relative of the said accused person over the telephone. She, as such,

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submits that there is a clear violation of Section 48 of the BNSS.

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8. On the other hand, Ms. Vanneihsiami, learned Addl. Public Prosecutor, submits that a notice under Section 47 of the BNSS, 2023, was given to the petitioner with the required particulars mentioned therein. She placed the notice given under the said Section, wherein it was stated that the petitioner was charged under Section 8(c) of the ND&PS Act, 1985 and that he was also informed that the offence is non-bailable and that he can meet his lawyer before and at the beginning of the interrogation. She also submits that the petitioner was informed that he could take recourse to his legal remedies.

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9. The learned Addl. Public Prosecutor also submits that a notice under Section 48 of the BNSS, 2023 was addressed to the paternal grandmother of the petitioner and, when it was found that the said paternal grandmother could not come down to the office where the occurrence took place, the information was given to her over telephone. As far as the memorandum of arrest is concerned, she submits that the same was prepared in compliance with Section 36 of the BNSS, 2023.

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10. I have heard the learned counsels and carefully gone through the records.

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11. It is mandated under Section 36 of the BNSS, 2023 that the police officer, while making an arrest, should first give the proper name of the person so that

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he can be identified without any doubt and, therefore, he should prepare a memorandum of arrest, and the same should be signed by at least one witness, who is either a member of the family of the accused person or a respected member of the locality where the arrest is made. It is also provided under the said provision that the memorandum of arrest should thereafter be countersigned by the accused person. The said provision makes it mandatory that the attestation of at least one witness should be made on the memorandum of arrest and the word used in the said provision is ' shall ', which makes the exercise mandatory.

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12. In the instant case, a memorandum of arrest was prepared by the police officer on 01.12.2025 but there was no attestation by a witness as provided under Section 36 of the BNSS, 2023. Only the counter-signature of the arrested accused person was found in the said document. As such, there appears to be a violation of Section 36 of the BNSS.

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13. As far as the notice under Section 47 of the BNSS is concerned, it is provided that a person arrested has to be informed of the grounds of arrest and that he shall also be informed about his right to be released on bail. The said provision further provides that the police officer or any other person arresting the accused person shall communicate to the said arrested accused the full

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particulars of the offence for which he is arrested and other grounds for such arrest. It is also provided that the person so arrested should be informed that he is entitled to be released on bail and that he may make arrangements for sureties on his behalf.

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14. In the instant case, by a simple reading of the notice issued under Section 47 of the BNSS, it is noticed that the petitioner was only informed about the case number under which he was arrested and that he was a carrier of the contraband intended for sale. He was also informed that the offence is nonbailable and that he can take legal steps to establish his rights provided under the law. However, the full particulars of the case, including how the information was received, how the contraband was recovered, from whom the contraband was recovered, whether there were any co-accused, and other particulars regarding the offences under the ND&PS Act, were not communicated to him .

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15. The Hon'ble Supreme Court, in the judgment of Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254, held that the grounds of arrest must be communicated to the arrested person . It was also observed that the grounds of arrest should contain information regarding all the facts on which the accused person was arrested so as to provide him with an opportunity of defending himself against custodial remand and of seeking bail. It was also

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observed that grounds of arrest cannot be equated with reasons for arrest. In the instant case, although the petitioner was informed of the case number and his right to approach an Advocate for legal remedies, the facts which necessitated his arrest or the details which were in the hands of the Investigating Officer were not set out in the notice. As such, there appears to be a violation of Section 47 of the BNSS.

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16. Further, the violation of Section 48 of the BNSS is also apparent in the instant case. Under Section 48 of the BNSS, it is provided that information has to be given to the relatives of the accused person regarding the arrest and the place where the arrested accused person has been detained , together with the necessary information from the I.O. In the instant case, a notice under Section 48 of the BNSS was addressed to the paternal grandmother of the petitioner, but the same was not served on her in writing. It is instead stated in the said notice that since the grandmother of the petitioner could not come to the office, she was informed about the arrest through a telephone call. It is a settled position of law that where the relative of the accused person resides outside the jurisdiction of the concerned Police Station, the information should be delivered to the concerned Police Station where the relative resides , and the said Police Station is mandated to serve the notice upon the said relative. The said exercise has not been carried out in the instant case, resulting in a violation of Section

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48 of the BNSS.

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17. In view of the same, the petitioner, namely, Sh. Malsawmthara is directed to be released on bail on furnishing of a bail bond of Rs. 20,000/- with one local surety of the like amount, to the satisfaction of the learned Special Judge, ND&PS Act, Aizawl, Mizoram under the following conditions:-

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