### Non-compliance with mandatory arrest procedures under BNSS renders arrest illegal, overriding Section 37 NDPS Act rigours.

The Petitioner was arrested on June 9, 2025, in connection with Silchar P.S. Case No. 603/2025 involving the seizure of approximately 18.915 kg (150,000 tablets) of suspected Yaba tablets—a commercial quantity—hidden in modified gas cylinders transported via truck.

While the contraband was recovered from a truck driven by a co-accused and a third party's residence, the Petitioner was intercepted in a separate Bolero vehicle.

The Petitioner challenged the legality of his arrest, asserting that the police failed to comply with mandatory procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita (BNSS), specifically regarding the attestation of the Arrest Memo and notification of family members.

1. Whether the failure to have the Arrest Memo attested by a witness as mandated by Section 36 of the BNSS renders the arrest illegal.

2. Whether the rigors of Section 37 of the NDPS Act (which restricts bail in commercial quantity cases) apply if the initial arrest is found to be procedurally illegal.

The court applied Section 36 of the BNSS, 2023, which mandates that every Arrest Memo must be attested by at least one witness (family member or local respectable person) and countersigned by the arrestee.

It further relied on Section 62 of the BNSS, which prohibits any arrest not made strictly in accordance with the Sanhita or applicable law.

The court also invoked the constitutional protections under Articles 21 and 22, ensuring personal liberty and the right to be informed of the grounds of arrest through established legal procedure.

The Court observed that while the NDPS Act carries the stringent "twin conditions" for bail under Section 37 for commercial quantities, these conditions presuppose a valid and legal arrest.

Upon reviewing the Trial Court Records, the Court found that the Petitioner’s Arrest Memo lacked the signature or attestation of any witness, and there was no evidence that a notice under Section 48 of the BNSS was effectively served on family members.

The Court adopted a strict interpretation of Section 36 read with Section 62 of the BNSS, reasoning that because the procedural mandate for a valid arrest was ignored, the arrest itself was void *ab initio* (illegal from the start).

Consequently, a violation of these mandatory statutory provisions constitutes a breach of fundamental rights under Articles 21 and 22 of the Constitution, which overrides the statutory restrictions of the NDPS Act.

The Court ruled that the Petitioner's fundamental rights were violated.

Accordingly, the bail application was allowed, and the Petitioner was ordered to be released on a bail bond of Rs. 1,00,000/- with two sureties, subject to specific conditions including cooperation with the trial and restricted movement.