Gauhati High Court
Page No.# 1/7 vs The State Of Assam on 20 January, 2026
Page No.# 1/7
GAHC010280292025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./4068/2025
AMINUR ISLAM AND ANR
S/O CHALIBOR RAHMAN, RESIDENT OF VILLAGE BOALIA, PS
MANKACHAR, DIST SOUTH SALMARA MANKACHAR, ASSAM 783135
2: NUR AMIN
S/O LATE KHATEM ALI
RESIDENT OF VILLAGE BOALIA
PS MANKACHAR
DIST SOUTH SALMARA MANKACHAR
ASSAM 78313
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A Z AHMED, MR. A KHALEK
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 20.01.2026.
Heard Mr. A.Z. Ahmed, learned counsel for the petitioners. Also heard Mr. Page No.# 2/7 B. Sarma, learned Additional Public Prosecutor, Assam appearing for the State respondent.
2. This is the second application under Section 483 of BNSS, praying for grant of bail to the accused/petitioners, namely, (1) Aminur Islam and (2) Nur Amin, in connection with the Special (N) Case No. 42/2025, arising out of Mankachar P. S. Case No. 70/2025, under Sections 22(C)/29 of NDPS Act, which is pending before the Court of learned Special Judge NDPS, South Salmara.
3. The scanned copy of the Trial Court Record along with the Case Diary has already been received and I have perused the same.
4. It is submitted by Mr. A.Z. Ahmed, learned counsel for the petitioners, that the accused/petitioners are innocent and they have not committed any such offence as alleged in the FIR. However, the bail petition filed on behalf of the present two petitioners was earlier rejected vide order dated 28.11.2025, in Bail Application No.3291/2025, wherein the plea of non-compliance of Sections 47 & 48 of the BNSS, 2023 was taken but the prayer for bail of the present petitioners was rejected by this Court with the observation that there is sufficient compliance of Sections 47 & 48 of the BNSS, 2023. But the present bail application has been filed on the ground of non-compliance of Sections 36 & 62 of the BNSS, 2023. The learned counsel for the petitioners submitted that as per Section 36 of the BNSS, 2023, there has to be a visible and clear identification of the name of the accused and at the time of preparation of memorandum of arrest, as per Section 36(b) of the BNSS, 2023, at least one family member of the arrested person or any respectable people of the locality should put his signature in the arrest memo and the counter signature of the Page No.# 3/7 accused persons are also required for the compliance of Section 36 of the BNSS, 2023. At the same time, the arrest is to be made strictly in accordance with Section 62 of the BNSS, 2023. But here in the instant case, from perusal of the arrest memo which is also annexed along with the petition, it is seen that there is no signature of any family members of the present petitioners at the time of providing the arrest memo under Section 36 of the BNSS, 2023. Accordingly, for the non-compliance of Sections 36 & 62 of the BNSS, 2023, the petitioners are entitled for bail, as it violates the right of the petitioners for non-compliance of Sections 36(b) & 62 of the BNSS, 2023.
5. Mr. Ahmed, the learned counsel for the petitioners further submitted that there may be compliance of Sections 47 & 48 of the BNSS, 2023, but all these Sections i.e. Section 36, 47 & 48 are independent Sections and hence, the compliance of all these Sections are required. In that context, Mr. Ahmed also relied on a decision of the coordinate Bench of this Court passed in Bail Application No.3804/2025, dated 17.12.2025, wherein also the issue of non- compliance of Sections 36 & 62 of the BNSS, 2023 has been considered and for non-compliance of those two Sections, the accused person was enlarged on bail by the coordinate Bench of this Court. The learned counsel for the accused petitioners are permanent residents of their addressed locality and hence, there is no chance of absconding, rather they will regularly appear before the learned Trial Court below as and when the date fixed by the learned trial Court.
6. Mr. B. Sarma, learned Additional Public Prosecutor, Assam appearing for the State raised vehement objection and submitted in this regard that the guidelines under Section 36 of the BNSS, 2023 (corresponding to Section 41(b) of the CrPC) was incorporated after the guidelines passed in the case of D.K. Page No.# 4/7 Basu, Ashok K Johri vs. State of West Bengal , reported in AIR 1997 SC 610, only to prevent some atrocities made by police and to monitor the proper procedure of arrest. He further submitted that it is a case of commercial quantity and therefore, the rigor of Section 37 of the NDPS Act shall also be applicable and because of the procedural lapses while arresting the accused petitioners, shall not give any right to the accused petitioners to enlarge them on bail.
7. Mr. Sarma, the learned Additional Public Prosecutor further submitted that the NDPS Act is a special form of legislation, wherein the Section 37 of the said Act is to be considered while allowing the accused petitioners to go on bail. There is no such observation made by the Hon'ble Supreme Court that if there is non-compliance of Section 36(b) of the BNSS, 2023 the bail has to be granted to the accused petitioners. Mr. Sarma further submitted that basically it is the case of the petitioners that there is non-compliance of Section 36(b) of the BNSS, 2023 but from the record, it reveals that there was total compliance of Sections 47 & 48 of the BNSS, 2023 and the notice issued under Section 48 of the BNSS, the relative/family members of the accused/petitioners were already intimated regarding the arrest of the present accused petitioners. So merely, because of non-compliance of Section 36(b) of the BNSS, 2023 i.e. only in absence of the signature of the relative/family members of the accused/petitioners cannot be held that there is a violation of the Article 21 or Article 22(1) of the Constitution of India.
8. Mr. Sarma, the learned Additional Public Prosecutor also relied on a decision of the Calcutta High Court rendered in CRM (NDPS) 445 of 2024 (Hero Sarkar vs. Union of India through the Intelligence Officer, Narcotics Control Bureau, Kolkata Zonal Unit), wherein in para 17 and 18 of the said decision, the Page No.# 5/7 Court held that when the judgment of D.K. Basu (Supra) was passed, the Section 37 of the NDPS Act was not an issue before the Hon'ble Supreme Court and the non-obstante clause of Section 37 of the NDPS Act has an overriding effect vis- à-vis all provision of the Criminal Procedure Code and accordingly, with that observation it was held by the Court that when an arrest is made without even complying with the requirements mentioned in Section 41(b) of the CrPC, corresponding to Section 36 of the BNSS, 2023, bail cannot be granted in case of NDPS Act, without satisfying the twine conditions under Section 37 of the NDPS Act.
9. Mr. Sarma, the learned Additional Public Prosecutor further submitted that here in the instant case, from the notice issued under Sections 47 & 48 of the BNSS, 2023, it is seen that the family members of the accused petitioner was intimated and there was sufficient compliance to that regard and thus, merely because of the procedural lapse in complying the proviso of Section 36(b) of the BNSS, 2023 will not cause any prejudice nor it will affect the right of the accused petitioners guaranteed under Article 21 1nd 22(1) of the Constitution of India. 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 petitioners at this stage, who are allegedly invoved in a case of commercial quantity.
10. Hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case record as well as the annexure filed along with the bail petition.
11. The earlier bail application of the present two petitioners was rejected Page No.# 6/7 vide order dated 28.11.2025, with the observation that there is sufficient compliance of Sections 47 & 48 of the BNSS, 2023 and in the notice issued to the present petitioners under Sections 47 & 48 of the BNSS, 2023, the ground of arrest was specifically mentioned and it was elaborately stated as to why they have been arrested in connection with this case. However, the present petition has been filed solely on the ground of non-compliance of Section 36(b) of the BNSS, 2023, corresponding to Section 41(b) of the CrPC, as at the time of issuing the arrest memo, the signature of the family members of the accused persons was not obtained by the I.O., which violates the provision of Section 36(b) of the BNSS.
12. In the same time, it is also the case of the petitioners that every arrest has to be in accordance with the Sanhita under Section 62 of the BNSS, 2023. It is a fact that while issuing the arrest memo under Section 36 of the BNSS, 2023, every detail of arrest has been mentioned. However, no signature is obtained from the family members or relatives of the accused petitioners. But it is seen from the record as well as the bail order passed earlier, that there is sufficient compliance of Sections 47 & 48 of the BNSS, 2023 and it is seen that the accused persons were well aware of their grounds of arrest and their family members were also accordingly intimated through notice under Section 48 of the BNSS Act, 2023.
13. Thus it is not a case that any prejudice is caused to the present petitioners only for non-compliance of Section 36(b) of the BNSS, 2023, when there is sufficient compliance of Sections 47 & 48 of the BNSS, 2023 and the family members or relatives of the accused petitioners were also intimated regarding the grounds of arrest of the petitioners. That apart, it is also seen that Page No.# 7/7 in the arrest memo as well as in the notices under Section 47 of the BNSS, 2023, the signature of the present petitioners were obtained intimating the petitioners regarding their grounds of arrest.
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.
15. In view of this and also considering the serious nature of the allegation brought against the present accused petitioners, this Court is of the opinion that the accused petitioners are not entitled to bail at this stage and accordingly, the same is rejected and disposed of.
JUDGE Comparing Assistant