1. Heard learned counsel of both sides.

2. The bail application has been filed seeking bail for the accused Kabil Uddin, in connection with Bagpassa P.S. Case No. 06 of 2026, registered under Sections 22(c) and 29 of the NDPS Act. The accused was arrested on 11.05.2026 and since then he is in custody.

3. The allegation against the accused Kabil Uddin and another Abdul Karim is that they were loitering suspiciously near Holy Cross School, Bagpassa and thereafter police detained them and recovered 9800 nos. of ‘Yaba’ tablets from one bag pack which was in their possession. Who was the immediate possessor of said bag pack was not divulged in the FIR and according to learned P.P., the same has also not been revealed in the case diary yet.

4. Learned counsel, Mr. S. Sharma for the petitioner prays for bail of the present accused only on the ground that in the arrest memo signature of the accused or his family members were not taken rendering the arrest illegal, and therefore, he is entitled to get bail for violation of Section 36 and Section 62 of BNSS, 2023. As per Section 36 of the Act, the arrest memo is required to be countersigned by the person arrested and also 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. Therefore, learned counsel submits that non-compliance of above said provisions as emanated from Article 21 of the Constitution also otherwise tantamounts to violation of fundamental right of the accused person, and therefore, the arrest is illegal and the accused is required to be released on bail forthwith.

5. In support of his contention, learned counsel, Mr. Sharma relies on a decision of Hon’ble Gauhati High Court in the case of Jahirul Islam alias Johirul Islam & Anr. vs. the State of Assam, Bail Application No. 1020 of 2026, decided on 19.05.2026, wherein, the learned Bench observed that non-compliance of above said provisions renders the arrest illegal and the arrested person accrues an unfettered right to be set at liberty. While interpreting so, the learned Bench also took note of the decision of Hon’ble Supreme Court in D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416.

6. Learned P.P., on the other hand opposing the prayer submits that the case is concerning commercial quantity of contraband items, and therefore, rigor of Section 37 of NDPS Act is applicable in the case. He also relies on the decisions of this Court in the case of Smt. Anamika Chakraborty vs. the State of Tripura, BA No. 111 of 2026, decided on 22.06.2026; Ratna Das vs. Union of India, BA No.72 of 2026, decided analogously with some other bail applications on 29.04.2026 and the decision of Hon’ble Supreme Court in the case of State of Punjab vs. Balraj Singh @ Billa, in Criminal Appeal No of 2026 in connection with Special Leave Petition (Crl.) No.896 of 2026.

7. In so far as the issue of non-compliance of Section 36 BNSS is concerned, it was earlier noticed by this Court in Anamika Chakraborty (supra) that there was no specific column mentioned therein specifying the place of signature of the family members of the arrestee or a respectable person. A direction was given to the DGP, Tripura to rectify the forms. It is intimated by the learned P.P. that already said direction has been complied with and henceforth, in no case, there will be any such non-compliance. In Balraj Singh (supra), Hon’ble Supreme Court at the concluding note observes that in case there is any conflict between the sovereignty of the country and the personal liberty, 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 the health of the people.

8. In Ratna Das (supra), the issue of violation of Section 36 of BNSS vis-à-vis grant of bail to the accused in NDPS cases was raised and wherein, taking note of different decisions of Hon’ble Supreme Court and other High Courts including one decision of Hon’ble Gauhati High Court in case of Amirul Islam alias Nengra Police & Anr. vs. the State of Assam (Bail Appln./3650/2025), ultimately refused to grant bail to the accused in that case and this Court also in said case relies on another decision of Hon’ble Supreme Court in case of State of Punjab vs. Sukhwinder Singh @ Gora, Criminal Appeal arising out of SLP (Crl.) No.5020 of 2026 wherein, it is held that the 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 and both the provisions are to be read harmoniously.

9. Section 37 of NDPS Act starts with a non obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence punishable for offences under Section 19 or 24 or Section 27(A) and also for offences involving commercial quantity, shall be released on bail unless the twin conditions imposed therein are satisfied. Therefore, such provision gives overriding effect on the provisions of BNSS, 2023. Even as stated above, Hon’ble Supreme Court in the case of Balraj Singh (supra) has also emphasized the barring provisions of NDPS Act.

10. Considering all these aspects, this Court is of the view that just because the counter signature of the arrested person was not taken in the arrest memo, bail cannot be granted to the present accused especially, when there are prima facie materials against him regarding recovery of commercial quantity of contraband items and also there is no dispute about the date, time and place of the arrest of the present accused person as shown by the police.

11. Accordingly, the bail prayer stands rejected.

12. Return the C.D. with a copy of this order.