Absence of Witnesses on Arrest Memo Does Not Vitiate Arrest if Section 48 BNSS is Complied

In brief

The question

1. Whether the absence of the signature of a family member or a respectable member of the locality on the arrest memo, as required under Section 36(b)(i) of the BNSS, vitiates the arrest or renders it illegal

The court held

The court concluded that the absence of witness signatures on the arrest memo did not ipso facto vitiate the arrest, provided the information was duly communicated to the family under Section 48 of the BNSS

It also directed

The court held that the arrest was not illegal and, given the recovery of commercial quantities of contraband, the rigors of Section 37 of the NDPS Act were not satisfied. Consequently, the bail application was rejected and the petition dismissed

01Facts

The petitioners were arrested on 26.02.2026 in connection with Jakhalabandha P.S. Case No. 21/2025 under Sections 22, 25, and 29 of the NDPS Act, 1985, following the recovery of commercial quantities of contraband

p. 2, 10

The petitioners sought regular bail under Section 483 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, contending that their arrest was illegal because the arrest memo lacked the signature of a family member or a respectable locality member

p. 2

The prosecution admitted the lack of signatures on the memo but argued that the grounds of arrest and information regarding the detention were duly communicated to the first petitioner's wife via notices under Sections 47 and 48 of the BNSS on the day of arrest

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02Issues

i.1. Whether the absence of the signature of a family member or a respectable member of the locality on the arrest memo, as required under Section 36(b)(i) of the BNSS, vitiates the arrest or renders it illegal

p. 3

ii.2. Whether the petitioners are entitled to bail considering the rigors of Section 37 of the NDPS Act

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03Law Applied

The court applied Section 36 of the BNSS, which mandates the procedure for arrest, including the attestation of the arrest memo by a witness

p. 5

Section 48 of the BNSS, which requires the police to inform a relative or friend of the arrestee about the detention

p. 6, 7

Section 62 of the BNSS, which mandates that arrests be made strictly according to the Sanhita

p. 5

The core legal principle was derived from D.K. Basu v. State of West Bengal (1997), which established mandatory safeguards for arithmetic and detention to prevent custodial torture

p. 3, 4

Section 37 of the NDPS Act, which restricts bail in cases involving commercial quantities unless there are reasonable grounds to believe the accused is not guilty

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Provisions in the judgment · 9 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 483 Section 47 Section 48 Section 36 Section 62 Section 37

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 22 Section 25 Section 29

04Reasoning

The court analyzed the interplay between Section 36(b) and Section 36(c) of the BNSS. It reasoned that while Section 36(b)(i) requires attestation by a family or locality member, Section 36(c) suggests that if such attestation is not possible at the spot, the requirement is satisfied by informing a relative or friend of the arrestee

p. 5, 6

The court held that the primary purpose of the arrest memo is legal accountability and recording the deprivation of liberty

p. 7

Since the police had served a formal notice under Section 48 of the BNSS to the petitioner’s wife on the same day, detailing the time, date, and place of arrest, the underlying purpose of attestation was fulfilled

p. 8, 9

The court distinguished previous Bench decisions where no such Section 48 notice existed on record

p. 9

Regarding the merits, the court found that because commercial quantities were involved, the petitioners failed to overcome the statutory hurdles under Section 37 of the NDPS Act

p. 10