Non-compliance with arrest memo attestation under Section 36 BNSS renders arrest illegal, bypassing Section 37 NDPS rigors.

In brief

The question

1. Whether the non-compliance with the witness attestation requirement under Section 36 of the BNSS, 2023, renders an arrest illegal even if Section 48 (information to relatives) has been complied with.

The court held

The court concluded that the arrest was illegal due to non-compliance with Section 36 of the BNSS.

It also directed

It held that such procedural violations override the NDPS Act’s statutory bars on bail.

The court allowed the application and directed the accused-applicant to be released on a bail bond of Rs. 1,00,000/- with two sureties, subject to conditions including regular appearance before the Trial Court and non-tampering with evidence.

01Facts

The accused-applicant was arrested on December 10, 2025, following a police intercept at Gadhowa Chapari. Search and seizure resulted in the recovery of 14.6 grams of suspected heroin, 16604.4 grams of syrup containing Codeine Phosphate, and 88.5 grams of Nitrozepam tablets.

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Mangaldai P.S. Case No. 227/2025 was registered under Sections 21(b), 22(b), and 22(c) of the NDPS Act, 1985.

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The applicant filed for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, contending that his arrest was illegal due to the absence of witness attestation on the arrest memo despite a notice being issued to a family member.

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02Issues

i.1. Whether the non-compliance with the witness attestation requirement under Section 36 of the BNSS, 2023, renders an arrest illegal even if Section 48 (information to relatives) has been complied with.

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ii.2. Whether the rigors of Section 37 of the NDPS Act, 1985, apply when the initial arrest itself is found to be procedurally illegal.

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03Law Applied

Section 36 of the BNSS, which mandatorily requires an arrest memo to be attested by at least one witness (family member or local respectable person).

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D.K. Basu v. State of West Bengal, which established that procedural safeguards for arrest flow from Articles 21 and 22(1) of the Constitution.

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Section 62 of the BNSS, which mandates that no arrest shall be made except in strict accordance with the Sanhita.

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Section 51 of the NDPS Act, which makes BNSS provisions applicable to arrests under the NDPS Act.

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Nasiruddin v. Sita Ram Agarwal regarding the mandatory nature of plain and unambiguous statutory language.

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Provisions in the judgment · 10 · Linked ones open on LawLens

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

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 21 Section 22 Section 37 Section 51

Code of Criminal Procedure, 1973 Section 41

04Reasoning

The court reasoned that Sections 36 and 48 of the BNSS are independent and mandatory statutory obligations that must be complied with concurrently.

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Relying on the interpretation in Juber Ahmed v. State of Assam, the court held that Section 36(b)(i) leaves no room for exception; the arrest memo must be attested by a witness regardless of whether the family is subsequently notified under Section 48.

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In this case, while a family member was notified, the arrest memo lacked any witness signature.

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The court observed that under Section 62, any deviation from these procedures renders the arrest unauthorized by law.

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Consequently, the court held that the fundamental rights under Article 21 were violated because the "procedure established by law" (BNSS) was not followed.

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Further, the court determined that the restrictive bail conditions under Section 37 of the NDPS Act do not apply where the foundational arrest is illegal, as an illegal arrest entitles the person to liberty.

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