Gauhati High Court
Sri Anshu Kumar vs The Union Of India on 24 April, 2026
Page No.# 1/16
GAHC010274072025
REPORTABLE (2026:GAU-AS:5681)
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./4009/2025
SRI ANSHU KUMAR
S/O VISHWANATH SINGH, R/O WARD NO 08, VILL BAKARPUR, PO
BISHUNPUR SAID, PS RAJAPAKAR, DISTRICT VAISHALI, BIHAR, PIN
844115
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE NARCOTICS CONTROL BUREAU, GUWAHATI
ZONAL UNIT, GUWAHATI
Advocate for the Petitioner : MR. N N B CHOUDHURY, MS. K DEY
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
24.04.2026 Heard Mr. N.N.B. Choudhury, learned counsel for the petitioner. Also heard Mr. R.K. Deb Choudhury, learned DSGI for the NCB.
2.This application has been filed under section 483 of the BNSS, 2023, praying for the grant of bail to the accused petitioner namely Sri Anshu Kumar, in connection with NCB Guwahati Crime No. 07/2025 registered Page No.# 2/16 u/s 8(c) read with 21(c) & 29 of the NDPS Act, 1985. The accused petitioner has been in custody since 13.08.2025.
3.During the pendency of this bail petition, the investigation had been completed, and a complaint had been filed before the jurisdictional Trial court, resulting in NDPS case number 509 of 2025 in the Court of Additional Session Judge Number 2, Kamrup (Metro). The scanned copy of the case record of NDPS case no. 509 of 2025 was called for, and they have been received and perused.
4.The learned counsel for the petitioner has submitted that there is a violation of the right under Article 22(1) of the Constitution of India due to the defects, not only in the notices under sections 47 & 48 of the BNSS but also during the arrest of the petitioner where the memorandum of arrest was not prepared in accordance with law. The learned counsel has submitted that the very arrest of the petitioner was defective. The learned counsel has submitted that since the continued detention of the petitioner, subsequent to the illegal arrest, is in violation of the constitutional mandates, the petitioner would be entitled to the privilege of bail in connection with NCB Guwahati Crime No. 07/2025.
5.Mr. NNB Choudhury, the learned counsel appearing for the petitioner has submitted that the petitioner, having been arrested on 13.8.2025, a memorandum of arrest is shown to have been prepared on the same date itself. The memorandum of arrest is a mandate under the provisions of Page No.# 3/16 section 36 of the BNSS, 2023. By referring to the memorandum of arrest, which is available with the petition as an annexure and is also available with the records received from the trial court, the learned counsel for the petitioner submits that the aforesaid memorandum was not attested by any independent witness, i.e. either a member of the family of the petitioner or a respectable person of the locality. The learned counsel for the petitioner has submitted that the signature of the witness available on the memorandum of arrest is that of an official of the Narcotics Control Bureau, Patna, from where the petitioner had been taken into custody. The learned counsel for the petitioner has submitted that the attesting signatory is not a member of the family and he does not fulfil the requirements of being a respectable member of the locality. The learned counsel for the petitioner has submitted the memorandum of arrest having not been prepared in accordance with law, the continued detention of the petitioner is vitiated. The learned counsel for the petitioner has submitted that this aspect alone would be sufficient ground for this Court to grant the privilege of bail to the petitioner at this stage.
6.By referring to the notice under section 47 of the BNSS, 2023 served upon the petitioner at the time of his arrest, the learned counsel for the petitioner has submitted there are no specific grounds of arrest conveyed to the accused petitioner for his arrest. The learned counsel has submitted that the notice, which is served in Hindi, did not mention the Page No.# 4/16 grounds of arrest. The learned counsel has submitted that, in view of the grounds of arrest not being made known to the petitioner at the time of his arrest and before his production before the learned Remand Magistrate, the detention of the petitioner in connection with this case violates his rights under Article 21 and 22 (1) of the Constitution of India. He submitted that even in this view of the matter, the petitioner deserves to be released on bail by this Court.
7.The learned counsel for the petitioner has thereafter drawn attention of this Court to the notice purported to have been served upon the father of the petitioner under the provisions of section 48 of the BNSS, 2023 to submit the same was admittedly in English, while his father, who had also signed in Hindi, was not conversant with, and in fact, did not understand English. The learned counsel for the petitioner has submitted that not conveying the grounds of arrest to the receiver of the notice under section 48 of the BNSS, 2023, was itself a violation of the law laid down by the Apex Court and therefore, the continued detention of the petitioner upon his arrest on 13.8.2025 was in violation of his rights under Article 21 and 22 (1) of the Constitution of India.
8.The learned counsel for the petitioner has further submitted that the petitioner was never informed of his rights to engage a counsel to defend himself at the time of his production before the learned remand Magistrate and even in that view of the matter, the continued detention Page No.# 5/16 of the petitioner deserves an interference from this Court.
9.The learned counsel has also submitted that the petitioner had been taken into custody only on the basis of the alleged statements of the persons from whom certain amount of illicit drugs had been recovered and in view of the settled position of law, such statements would have no relevance during the Trial to implicate the petitioner. He has further submitted that all other co-accused in the case have been granted the privilege of bail by competent courts of law, including this Court, and therefore, the continued custody of the petitioner in the present scenario would not be necessary.
10.The learned counsel for the petitioner has relied upon the following citations in support of his contentions:
1.Pankaj Bansal vs Union of India reported in (2024) 7 SCC 576
2.Vihaan Kumar vs State of Haryana reported in (2025) 5 SCC 799
3.D K Basu vs State of West Bengal reported in (1997) 1 SCC 416
4.Ahmed Mansoor vs State, crl. appeal no.4505/2025, d/o 14.10.2025 (SC)
5.Crl Appeal no 234/2025 NIA vs Thangminlen Mate, d/o 21.08.2025 (GHC, DB)
11.He has accordingly prayed for the petitioner to be granted the privilege of bail under such conditions as this Court may deem fit and proper and Page No.# 6/16 he has also submitted that the petitioner undertakes to abide by all conditions that may be imposed upon him.
12.Countering the aforesaid submissions, Mr. RKD Choudhury, the learned DSGI and counsel appearing for the NCB has submitted that a notice under the provisions of section 67 of the NDPS Act 1985 had been served upon the petitioner and he had appeared voluntarily before the investigating officer of the connected case on 13.8.2025 at the premises of the Narcotics Control Bureau, Patna. Having recorded the voluntary statement of the petitioner in accordance with law, the investigating officer had found sufficient grounds to believe that his detention was necessary and as such, he was placed under arrest from the premises of the Narcotics Control Bureau, Patna itself. The learned DSGI has submitted that the arrest having been carried out in the office premises, a respectable officer of the said office, who was not connected to the investigation or to the arrest itself, had been requested to act as a witness to the arrest. The learned Dy. SGI has expressed strong objection to the submissions that the arrest was not witnessed by any respectable member of the locality. He has submitted that an officer serving the Government of India has to be deemed to be a respectable person, unless the contrary is proved. In the present case, the witness was competent to attest the arrest memorandum as he was not connected with the investigation of the case. The learned counsel has Page No.# 7/16 further submitted that no one from the family of the petitioner was available at the time of arrest, the petitioner had been informed of his rights to inform a family member at the earliest and accordingly, he had informed his father telephonically about his arrest and a perusal of the memorandum of arrest would also show that the petitioner had informed his father the grounds of his arrest over mobile phone. He has submitted that there being substantial compliance of the provisions of section 36 of the BNSS, 2023, the prayer for grant of privilege of bail deserves a rejection from this Court.
13.Addressing the arguments made on behalf of the petitioner regarding the violation of provisions of Section 47 of the BNSS, 2023, the learned Dy.SGI has submitted that the petitioner had acknowledged that he had explained the grounds of his arrest in Hindi. Moreover, in the noting available in the handwriting of the petitioner in the memorandum of arrest, he had acknowledged that he had been explained the grounds of his arrest both in Hindi and in English and he had further explained the same to his father over telephone, which also indicates that the petitioner had understood the grounds of his arrest. It has been submitted that there is substantial compliance of the provisions of law insofar as the notice under section 47 of the BNSS is concerned and therefore, the bail prayer of the petitioner deserves to be rejected.
14.The learned Dy. SGI has thereafter submitted that, insofar as the notice Page No.# 8/16 under section 48 of the BNSS is concerned, the intimation about the arrest of the petitioner had been given to the father of the petitioner on 13.8.2025 itself over telephone by the petitioner himself and further, the petitioner himself had acknowledged that the petitioner had informed his father the grounds of his arrest during the conversation on 13.8.2025. The orders passed by the learned magistrate, who allowed the transit remand, had also taken note of the different notices, including the notice under section 48 of the BNSS being supplied to the father of the petitioner. The learned Dy.SGI has submitted that in view of the above, the mandates of section 48 of the BNSS, 2023 had been duly complied with.
15.The learned Dy.SGI, Mr. R K Choudhury has further submitted that commercial quantity of heroin is involved in the matter and therefore, the rigors of Section 37 of the NDPS Act would be applicable in the case. He submits that the evidence collected during investigation amply demonstrate that the petitioner was an active participant in the trafficking of illegal heroin and therefore, there can be no presumption regarding his innocence and there can be no presumption that he would not again indulge in similar activities in the future.
16.He has accordingly prayed for dismissal of the prayer for grant of bail to the petitioner.
17.I have considered the submissions made by the learned counsel for the Page No.# 9/16 parties and I have also perused the scanned copy of the Trial Court records.
18.The provisions of section 36 of the BNSS, 2023 are quoted herein below for a ready reference:
"36. Procedure of arrest and duties of officer making arrest. Every police officer while making an arrest shall-
(a) bear an 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 person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform 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."
19.For the purposes of the present case, a perusal of the memorandum of arrest exhibits that the same was countersigned by the petitioner and in the absence of the attestation by any family member, the petitioner had intimated his father regarding the arrest. Thus, on the face of it, there is clear compliance of the provisions of Section 36(b) (ii) and deemed Page No.# 10/16 compliance of provisions of 36 (c) of the BNSS, 2023. Insofar as compliance of provisions of Section 36(b) (i) is concerned, it is an admitted position by the state that there was no family member of the petitioner available to attest the memorandum of arrest. The memorandum contains an attestation, which the petitioner contends is the signature of an officer of the Narcotics Control Bureau, Patna and which the state contends is the signature of a witness who was available at the place of arrest.
This court is required to ascertain whether the attestation of a memorandum of arrest by an officer, assuming that the signature in the present case belongs to an officer of the NCB, Patna, would suffice the conditions of provisions of Section 36(b)(i) of the BNSS, 2023 or would such an attestation vitiate the memorandum of arrest and consequently render the arrest itself to be illegal. This aspect assumes importance since the provisions of section 62 of the BNSS, 2023 restricts arrest except in accordance with the provisions of the Sanhita or any other law for a time being in force providing for arrest.
20.This court finds force in the submission of the learned counsel for the NCB that an officer, who is serving the Union of India, has to be deemed to a respectable person, unless the contrary is alleged or proved. In the present case, the signatory is an officer of the NCB, Patna Zonal Unit, i.e. the place of arrest of the petitioner, where the petitioner had come in Page No.# 11/16 response to the summon issued to him under the provisions of Section 67 of the NDPS Act, 1985. The arrest was affected at 2100 hrs. on 13.8.2025. There is no allegation leveled by the petitioner that the officer who had attested the memorandum of arrest was connected to the case in which the petitioner was arrested in any manner whatsoever. No circumstances have been put forth before this court, for it to even remotely presume that the witness attesting the memorandum of arrest was not a respectable person of the locality where the arrest had been affected.
21.This Court further notices that in the order dated 13.11.2025 passed in BA no 2594/2025 with regard to co-accused in the same case, this court had observed that the memorandum of arrest did not contain the attestation of any respectable member of the locality. I have gone through the scanned copy of the Trial Court records, which demonstrate that in the case of Pankaj Kumar, the co-accused, the arrest memo was attested by an officer serving in the same NCB unit, who was a part of the investigating team and the said witness was also actively involved in the investigation. The said witness is the arresting officer in the present case. Thus, the facts of the present case differs from the case of Pankaj Kumar, who was the applicant in BA 2594/2025 and the reliance of the petitioner on the orders passed in the said case do not aid him.
22.The court therefore rejects the contention of the learned counsel for the Page No.# 12/16 petitioner that the memorandum of arrest of the petitioner suffered from any illegality.
23.The next contention of the petitioner that he was not supplied with the grounds of his arrest deserves a closer look. One of the notices was admittedly in Hindi and it is not the case of the petitioner that he did not understand Hindi. The notice in Hindi referred to recovery of contrabands from other accused persons and that there were evidence of the petitioner being involved in the trafficking of the contrabands. The details of the case against the petitioner had also been specified. In such circumstances, this court is of the opinion that the petitioner had been explained the grounds of his detention, which he had also specifically admitted while acknowledging the receipt of the notice. Therefore, the submissions of the learned counsel for the petitioner with regard to an insufficient notice under provisions of Section 47 of the BNSS, 2023 fails to achieve the concurrence of this Court.
24.The notice under section 48 of the BNSS, 2023 served upon the father of the petitioner is next taken up for consideration. The contents of the said notice, insofar as they relate to communication of the grounds of arrest of the petitioner, are worded similarly to the notice served on the petitioner under Section 48 of the BNSS. The receipt of the notice has been acknowledged by the noticee, who is the father of the petitioner, albeit by putting his signatures in Hindi. There is a specific averment in Page No.# 13/16 the petition that the father of the petitioner was not conversant with English and the notice was served upon the noticee a day after the arrest. Though the petitioner had raised a dispute that the notice was served after his production, the order of the learned magistrate allowing the transit remand has recorded that the notice under section 48 of the BNSS, 2023 had also been found on record, thus negating the claim of the petitioner. However, the respondents have not been able to counter the assertion that the receiver of the notice under Section 48 of the BNSS, 2023 had not been explained the contents of the notice and have not asserted that father of the petitioner had been explained the grounds of arrest of the petitioner in a language that he was conversant with.
25.In Vihaan Kumar vs. State of Haryana, reported in (2025) 5 SCC 799, the Apex Court at paragraph 26.3, has held that when an accused alleges non-compliance of the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1). The respondents have submitted that the notice was served on the father of the petitioner and that the plea of "language" is an afterthought. Would such a submission suffice to discharge the burden cast upon the State to prove compliance with the requirements of Article 22(1), in the absence of any assertion that the father of the petitioner had been explained the grounds of his arrest in a language that he understood and in the absence of a specific assertion Page No.# 14/16 that the father of the petitioner appeared to be conversant with the language used in the notice? In the absence of adequate explanations by the State, the answer has to be in the negative. No reasons have been given for not furnishing a Hindi version of the grounds of arrest to the father of the petitioner when such vernacular version had been furnished to the petitioner in Hindi.
26.This court also notices that there was none to represent the petitioner at the time of his production before the learned magistrate when a transit remand had been prayed for by the arresting authority. The records also reveal that the petitioner was not represented by a counsel at the time of his production 16.8.2025. The order of the learned Special Judge (NDPS) records that in the absence of legal representation, the LADC Chief of the Court was appointed as legal aid counsel to represent the accused. The petitioner was then forwarded to judicial custody. Thus, on both the occasions when he was produced before both the learned remand courts after his arrest, the petitioner did not have any legal assistance. The provisions of Article 22(1) mandate that no arrested person shall be denied the right to consult, and to be defended by a legal practitioner of his choice. The records do not reveal that the petitioner had been informed of his right to consult and to be defended by a legal practitioner of his choice or that he had refused to exercise his right. The assertion of the petitioner that he had been denied his rights under Article 22(1) have Page No.# 15/16 not been fruitfully rebutted on behalf of the arresting authority.
27.Though Section 37 of the NDPS Act provides for certain conditions to be fulfilled before granting bail to an arrested person in cases involving seizure of commercial quantity, the same shall apply only when the arrest itself is not illegal. However, if any arrest is made in violation of the rights guaranteed to an arrested person, the very initial arrest becomes illegal and the rigor of the said provision would not be attracted. When the arrest is illegal, further custody arising out of that arrest deserves interference. In the present case, which involves recovery of commercial quantity of contrabands, for which the petitioner has been put up as a charge sheeted accused, this Court is of the opinion that the participation of the petitioner has to be ensured during the Trial by giving him the benefit of bail under strict conditions. The petitioner has projected himself to be a resident of a locality outside the jurisdiction of the learned Trial Court.
28.Accordingly, this Court, directs that the petitioner be released on bail on furnishing bail bonds of Rs.2,00,000/- (Rupees two Lakh), with two suitable sureties of the like amount, at least one of whom shall be a Government Servant and at least one of whom shall have immovable property, to the satisfaction of the learned Trial Court, subject to the following conditions:
i) the petitioner shall appear before the learned Trial Court, on such Page No.# 16/16 dates, as fixed by the learned Trial Court;
ii) the petitioner shall not leave the territorial jurisdiction of the learned Trial Court, without prior written permission. The learned Trial Court shall be at liberty to impose necessary conditions if such permission is granted;
iii) the petitioner shall not hamper and tamer with the evidence of the case;
iv) the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;
v) the petitioners shall provide their contact details before the learned Trial Court, if the same are not yet seized;
vi) the learned Special Judge shall be at liberty to impose such other condition or conditions as may be deemed necessary to ensure the participation of the petitioners in the trial;
vii) the prosecuting authority shall be at liberty to bring any violation of the conditions imposed to the notice of the competent court and request for a recall/cancellation of bail.
29.The bail application stands disposed of.
JUDGE Comparing Assistant