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Judgment
By this application, bail for the accused persons namely Smti Sima Devi and Smti Soni Devi have been sought for in connection with R.K. Pur PS case no.32 of 2016 registered under section 20(b)(ii)(c)/29 of NDPS Act,1985. Both of them were arrested on 5.4.2026.
[2] On the basis of a secret information, the police stopped a bus bearing Registration No. TR-03-1353 at Belonia Chittamara on 05.04.2026 wherein both the accused persons were allegedly travelling with ganja. The bus was stopped at Garjee Naka Point and the police found above said two accused persons in the said vehicle with 4(four) nos. of nylon sacks wherefrom total 27.8 kg ganja was recovered from Smt. Soni Devi and 26 kg ganja was recovered from Smt. Sima Devi. The police arrested them accordingly on the spot.
[3] Mr. Subrata Sarkar, learned senior counsel appearing for the petitioners, argues in support of the bail application mainly on a single point that the signature of any near relative of the arrested persons or any respectable person of the locality was not taken in the arrest memo, in violation of Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which has rendered the arrest illegal. According to learned senior counsel, the basic principle of Section 36 of BNSS emanates from Article 21 of the Constitution to give certain protection to an accused person during and after arrest in as much as by effecting the arrest, his personal liberty is curtailed. Therefore, according to learned senior counsel, violation of said provision has rendered the arrest illegal for infringement of Art.21 of the Constitution and as such the accused persons are entitled to get bail.
[4] Learned senor counsel in support of his contention, relies on a decision of Hon’ble the Supreme Court in case of D.K. Basu versus State of West Bengal; (1997) 1 SCC 416. The relevant paragraphs of the said decision as relied on by him are extracted hereunder. The detail discussion on this decision will follow in later part of the judgment.
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:
The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These [5] Learned senior counsel, referring to the above said paragraphs of the said decision rendered in D.K. Basu (supra), lays emphasis on his submission that the said law was laid down by the Apex Court about 30 years ago and was well circulated to all police departments. Therefore, it cannot be said that the police authorities had or have no knowledge of the same, and even after 30 years of said pronouncement, the police authorities still violate the said provision. Therefore, matter is to be dealt with sternly, holding the arrest of accused persons as illegal.
[6] Learned senior counsel, referring to Section 62 of BNSS, further argues that as per said provision, all arrests should be made strictly in accordance with the provision of the Sanhita and therefore, according to learned senior counsel, on failure to do so, the arrest will automatically be rendered illegal. It is also submitted that no separate procedure has been laid down for effecting arrest in NDPS Act. Therefore, the provisions of the BNSS in this regard are applicable in cases under NDPS Act and as a corollary, if there is violation of any provision of BNSS and the arrest is not done in conformity with the provisions of BNSS, the arrestee will automatically be entitled to get bail. In this regard learned senior counsel has relied on another decision of Hon’ble Gauhati High Court in case of Asmat Ali versus the State of Assam; Bail Appln. No.953 of 2026 decided on 29.05.2026; [GAHC010067522026] and more particularly the paragraph no.28 of the said decision, which is also reproduced hereunder:
Said case was registered under section 21(b)/22(b)/22(c) of NDPS Act. While releasing the accused person on bail, the learned Bench relied on two previous decisions of Gauhati High Court in case of Abu Shama & anr. V. The State of Assam, (BA No.3636 of 2025) and Juber Ahmed v. the State of Assam (BA No.1199 of 2026). The Court also observes that the rigors of Section 37 of NDPS Act shall not be applicable in this case, wherein, the arrest itself is rendered illegal due to violation of Section 36 of BNSS. In Juber Ahmed’s case, the decision in D.K. Basu was relied upon.
[7] Mr. Sarkar, learned senior counsel also submits that even over telephone also nothing was informed to the family members of the accused persons about their arrests.
[8] Mr. Raju Datta, learned Public Prosecutor, in his turn replies that the family members of the accused persons reside in Bihar and the arrest was effected at South Tripura District. Therefore, it was not at all possible for the arresting officer to obtain the signatures of the near relatives of the accused persons in the arrest memo and so far as the absence of any signature of any respectable persons of the society is concerned, there was no column or specific place marked in the printed format of arrest memo for obtaining such signature, and therefore, it cannot be said as an intentional violation of the said provision by the arresting officer. Learned Public Prosecutor also submits that in this regard this Court has already made necessary observation in case of Smt. Anamika Chakraborty for and on behalf of accused Sri Nandu Saha versus the State of Tripura [B.A. No.111 of 2026] decided on 22.06.2026 wherein the followings were observed:
“[11] Court has considered the rival contentions of the parties and has also given due consideration to the above referred decisions of the High Courts and the Supreme Court. It is a fact that in terms of the direction given in D. K. Basu (Supra), Section 41(B)(b) of Cr.P.C. was later on incorporated in the Statute which carried over in Section 36 of BNSS. Section 37 of the NDPS Act starts with a non-obstante clause „notwithstanding anything contained in the Code of Criminal Procedure, 1973‟ with further embargo that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence (emphasis laid) and that he is not likely to commit any offence while on bail. Therefore, such twin conditions as enumerated hereinabove are required to be fulfilled first to grant bail in a case concerning commercial quantity of contraband items. In paragraph no.34 of D. K. Basu (Supra) it was also noted by the Hon‟ble Supreme Court that to bring in transparency and accountability the arresting officer should prepare a memo of arrest at the time of arrest in presence of at least one witness who may be a member of the family of the arrestee or a respectable persons of the locality from which the arrest is made. In the case in hand, there is no dispute regarding the date and time of arrest of the accused person. From the arrest memo it appears that it is a printed form and said form itself was prepared in a defective manner as it does not contain any column specifying any place to contain the signature of any member of the family of the arrestee or a respectable person of the locality. This may be the reason, the arresting officer was misguided and failed to obtain the signature of the wife of the accused person whose name and address are noted in the arrest memo. It is the demand of the Section 36 of BNSS that the memorandum of arrest should be 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.
Immediately such arrest memo is required to be rectified.”
[9] In that case this Court relies on Tasleem Ahmed versus State Government of NCT of Delhi [Cri. Appeal No……… of 2026 @ SLP (CRL) No.2867 of 2026 decided on 22.05.2026] wherein the Apex Court referred the issue to the larger Bench to decide as to how Article 21 is to be applied in a statutory field where Parliament has consciously imposed restrictions on bail in respect of offences alleged to affect the security of the State and the stability of civic life, and to settle the correct approach to bail under special statutes where Art. 21, prolonged incarceration and statutory restrictions intersect. Learned Public Prosecutor submits that the said issue is yet to be decided by the Hon’ble Supreme Court.
[10] Learned Public Prosecutor further relies on a decision of this Court in case of Smt. Ratna Das on behalf of accused Sri Sujit Das versus Union of India [B.A. No.72 of 2026] decided on 29.04.2026 wherein similar issue of violation of Section 36 of BNSS was raised as in the arrest memo neither the signature of the family members of the accused or a respectable person of the locality was obtained. This Court ultimately rejected the bail application in said case.
[11] In aforenoted case learned counsel for the petitioner also relies on a decision of Hon’ble the Supreme Court in case of Romila Thapar and others versus Union of India and others; (2018) 10 SCC 753 wherein reference to the decision of D.K. Basu (supra) was made. Learned counsel further relies on a decision of Single Bench of Hon’ble Gauhati High Court in case of Amirul Islam Alias Nengra Police and another versus the State of Assam [Bail Appln./3650/2025] decided on 20.01.2026; decision of Hon’ble Calcutta High Court in case of Ansar Ali versus State of West Bengal [CRM No.5708 of 2018] decided on 10.08.2018; another decision of Hon’ble Calcutta High Court in case of Chandra Bahadur Tamang @ Chandara B Tamang versus the State of West Bengal [CRM (NDPS) No.435 of 2023] decided on 27.07.2023 wherein also reference was made to the decision of D.K. Basu (supra). In said case further reference was made to another decision of Hon’ble Supreme Court in case of Vijay Singh versus Union of India [Special Leave Petition (Criminal) Dairy No(s). 43071/2024] wherein Hon’ble the Supreme Court observes that Article 21 of the Constitution of India over-rides Section 37 of the Act and if there is an undue delay on the part of the prosecution in concluding the trial and that too for no fault on the part of the accused, then accused cannot be kept in jail for indefinite period of time. This Court in said case also took note of another decision of Hon’ble the Supreme Court in case of Directorate of Enforcement versus Subhash Sharma; (2025) 1 SCR 1409 wherein the Apex Court observes that while dealing with a bail application if the Court finds that the fundamental rights of the accused under Article 21 and 22 of the Constitution of India is violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The prosecution in that case relies on a decision of Hon’ble the Supreme Court in case of Narcotics Control Bureau versus Mohit Aggarwal [Criminal Appeal Nos. 1001-1002 of 2022 arising out of Special Leave to Appeal (CRL.) No.6128-29 of 2021] decided on 19.07.2022 wherein the Apex Court observes that the the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
[12] Finally, this Court after taking note of decision of Hon’ble Supreme Court in case of State of Punjab versus Sukhwinder Singh @ Gora [Criminal Appeal arising out of SLP (Crl.) No.5020 of 2026] decided on 24.04.2026 wherein the Apex Court has commented that in the matters involving recovery of contraband in commercial quantity, the twin conditions under Section 37(1)(b)(ii) of the NDPS Act are mandatory and entail no relaxation merely on the ground that the accused has undergone prolonged incarceration during the pendency of trial and right under Article 21 must be exercised within the framework of Section 37 and cannot be pressed into service solely on the ground of delay to override it, rejected the bail prayer.
[13] Learned Public Prosecutor also relies on a decision of this Court in case of Smt. Jaya Rani Debbarma on behalf of accused Shri Bishu Kumar Tripura versus the State of Tripura [B.A. No.103 of 2026] decided on 03.06.2026 wherein the bail was sought on the ground of prolonged detention of the accused in custody which according to the petitioner ultimately led him to suffer for violation of Article 21 of the Constitution. In said case this Court refers to a recent decision of Hon’ble Supreme Court in case of State of Punjab vs. Balraj Singh @ Billa, in Criminal Appeal No…… of 2026 @ Special Leave Petition (Crl.) No.896 of 2026, decided on 02.06.2026 wherein the Hon’ble Supreme Court observes that in Tasleem Ahmed v. State Govt. of NCT of Delhi, Crl. A. @ SLP (Crl.) No.2867 of 2026 the matter has already been referred to the larger Bench concerning the approach of constitutional Courts in bail matters under special statutes, where “Article 21, prolonged incarceration and statutory restrictions intersect” and in view of the said reference, the Hon’ble Bench of the Apex Court further observes that the Court was not going to deliberate on this issue further, but the paramount consideration is nothing but interest of justice for all. Should there be any conflict between the sovereignty of country and personal liberty, the Hon’ble Court opines, undoubtedly, the former shall prevail, particularly, when a war is waged against the nation, be it in the form of supply of drugs, which vitally affects the national economy and health of the people. Considering all these aspects learned Public Prosecutor has opposed the prayer on the above said grounds.
[14] Learned Public Prosecutor further referring to an entry in the case diary dated 22.04.2026 also submits that both the arrested accused persons provided a mobile number of one Lalan Chouhan of their locality through whom the police authority communicated with husbands of both the accused persons and informed them about the ground of arrest of both the accused persons.
[15] So far the present case is concerned, the allegation is of violation of a provision of the statute contained in BNSS (Sec. 36) which originated from the guidelines issued in D.K. Basu (supra) and such guidelines emanated from Article 21 and Article 22 of the Constitution. Therefore, it is apposite to study D.K.Basu first in it’s true contexts and perspectives.
[16] The contexts under which said decision was rendered is canvassed in the paragraph No. 9 of the judgment itself which reads thus: [17] Hon’ble Court in paragraph Nos. 17 and 18 after also taking note of the provisions of Art. 20(3), Art.21, Art.22, different provisions of Code of Criminal Procedure like Section 41, 49, 50, 53,54, 56, 57, 167 and 176 regarding protective umbrella of individual right to life and liberty and mechanism against State atrocities, observes that in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor and a reading of morning news papers almost every day carrying reports of dehumanizing torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. In the same line it is further observed in paragraph No. 22 that the custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law and the rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. For better understanding about the enforcement of right guaranteed under Art.21 in the relevant contexts, the entire paragraph No.22 is also excerpted below:
“22.Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”
[18] The Hon’ble Court further takes note of a previous decision in case of Nilabati Behera v. State of Orissa; (1993) 2 SCC 746 that the prisoners and detenus are not denuded of their fundamental rights under Art.21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenus, further expresses grave concern at paragraph no. 24 that instances are coming to the notice of the Court where the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest (emphasis laid), and the arrested person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. and the torture and injury caused on the body of the arrestee has sometimes resulted in his death.
[19] Despite being so seriously concerned about custodial torture and atrocities, it is also observed in paragraph No.27 in D.K. Basu that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of his crime or his kin and kith becomes frustrated and contempt for law develops (emphasis laid). At paragraph No.28, it is simultaneously observed that police is under legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation, but it must be remembered that the law does not permit third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. To check the abuse of police power, it is observed in paragraph No. 29 that transparency of action and accountability are two possible safeguards which the Court must insist upon. While emphasizing on such transparency and accountability of police personnel, the Hon’ble Supreme Court also took note of the ground level reality and difficulties faced by the police personnel investigating a case in paragraph No.31 and for useful reference, entire paragraph No.31 of D.K. Basu is also extracted below:
“31.There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself.”
(emphasis underscored)
Therefore, according to Hon’ble Supreme Court a balance approach is needed to curb out the police atrocities without giving too much emphasis on the protection of fundamental rights and human rights of hardened criminals for sake of societal interest. It is in that perspective the directives in paragraph No.35 of said decision as extracted earlier in paragraph No. 4 of this judgment, were issued.
[20] With reference to remedial measures in case of custodial violence or deaths in lock up whose fundamental right to life is infringed, the followings were further observed in paragraph No.41:
“41.Some punitive provisions are contained in the Penal Code, 1860 which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Penal Code, 1860. These statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.”
[21] No where in the said decision of D.K. Basu (supra), it is held that in case of any sort of non compliance of the directions issued in paragraph No.35, it will automatically render the arrest illegal and the arrested person will therefore accrue an indefeasible right to get bail, even when sanctity of arrest is not in peril in a case of a very serious nature of offence and when there is no allegation of any sort of illegal detention and harassment or any sort of atrocities by police or of making of show of any artificial or false arrest by police with mala fide intention. Section 36 (b)(i) of BNSS is nothing but the reproduction of direction No.2 contained in paragraph No.35 of said decision. It has never been intended either by the law makers in Sec. 36 or by Hon’ble Supreme Court in D.K. Basu‟s case that taking chance of certain omission on the part of the police authority either may be due to any accidental slip or omission or even for any lack of efficiency in complying the said provision or any of the said directions contained in D.K. Basu‟s case, a hardened criminal should get the scope to go scot-free to the detriment of the fair investigation as well as fair trial. The basic legislative intent behind such provision of Section 36 as well as the objectives in passing such directions by Hon’ble Supreme Court is to ensure transparency and accountability of the arresting authority while making arrest so that the arrested persons are not subjected to any sort of police harassment and custodial torture. Even in paragraph No.33 of the said decision it is categorically held by the Hon’ble Supreme Court that freedom of an individual must yield to the security of the State and right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. In view of above, what to talk about the stringent provision of bail in case of NDPS Act where in the language of Hon’ble Supreme Court in case of Balraj Singh @ Billa (supra), drug trafficking is virtually a war waged against the nation by attacking on national economy and public health where sovereignty of country is under threat. Illegal trade in narcotic items is not only affecting the society or a particular State, entire nation is victim of this crime. On one hand, it is destroying the country’s economy by constant attack on it and on the other hand it is destroying several families taking away lives of countless persons and that is why a very stringent condition of bail has been put into application by the law makers through the provision of Section 37 of the Act with solemn objectives. Therefore, violation of Section 36 of BNSS is required to be examined in the contexts of each case. This Court therefore most respectfully draws a line of dissent with the view taken in Asmat Ali (supra).
[22] In case of Sukhwinder Singh @ Gora (supra) also it has been observed by the Apex Court that right under Article 21 must be exercised within the framework of Section 37 of NDPS Act and cannot be pressed into service solely on the ground of delay to override it. Further, Section 37 of the NDPS Act also starts with a non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure (now BNSS), bail cannot be granted to an accused in a case involving commercial quantity of contraband items unless the twin conditions of the said provision are satisfied.
[23] Therefore, when there is no allegation from the side of present petitioner in the case in hand about any sort of illegal detention or false demonstration of arrest or any sort of lack of transparency in the matter of arrest, it is not much significant whether the arresting officer has failed to scrupulously comply the provision of Section 36, in the given facts of the case, however, it is also clarified that such observation will not in any way absolve any arresting authority of complying said provision in true sense. In case of any sort of grievance persisting in the mind of the arrested accused persons i.e. present accused persons, they will be at liberty to seek proper relief in accordance with law against the arresting officer in proper forum.
[24] In the instant case, as per the entry in the case diary, the information about the arrest of the accused persons and ground of arrest were communicated to the husband of both the accused persons through mobile phone of one Lalan Chouhan of their locality as they are residing in Bihar. It is also fact that in the arrest memos which are used by the arresting officer in the instant case, do not contain any specific row or column for obtaining signature of any near relative of the arrestee or any respectable person of the locality. But the investigating officer has mentioned the names and addresses of both the husband of the accused persons in said arrest memo.
[25] In case of Smt. Anamika Chakraborty (supra), it is already observed that the form as is printed from police department is itself defective which does not contain any column specifying any place to contain the signature of the family members of the arrestee or a respectable person of the locality and therefore, it may be the reason, the arresting officer was misguided and failed to obtain the signature of the near relative. Therefore, the DGP, Tripura was directed to ensure that such defect is immediately removed in the printed form of arrest memo and a proper place is kept therein for obtaining the signature of family member of the arrested person or a respectable member of the locality where the arrest is made, as a proof of such attestation to ensure proper compliance of Section 36 of BNSS. Learned P.P. informs the Court that in view of above said direction, already the defect has been rectified in the arrest memo.
[26] Taking overall note of all these matter and also on consideration of the incriminating materials available against the accused persons in the case diary, it cannot be said that twin conditions as embodied in Section 37 of the NDPS Act are satisfied.
Considering all these aspect, the bail prayer of the accused persons is rejected.
Return the case diary to learned P.P. with a copy of this order.
Also re-consign the Trial Court record with a copy of this order.
Pending application(s), if any, shall stand disposed of.