Team Goemkarponn
MARGAO: In a significant ruling, the South Goa Sessions Court has held that an arrest made without preparing a valid arrest memo in accordance with Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, can be treated as illegal and a violation of an individual’s constitutional rights.
The observation came while Sessions Judge Sharmila Patil granted bail to Ishu alias Yashwant Sharma, who had been arrested by Canacona police in connection with a case registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
The court underscored that the requirement of an arrest memo is not a mere procedural formality but an important safeguard intended to protect the personal liberty guaranteed under Article 21 of the Constitution.
While examining the case records, the court found that no separate arrest memo had been prepared. Although the arrest panchanama recorded the date and time of the arrest, the judge noted that it could not substitute the statutory requirement of an arrest memo witnessed by an independent person or a relative of the accused.
The court observed that the safeguards incorporated in Section 36 of the BNSS have their roots in the Supreme Court’s landmark judgment in *D.K. Basu vs State of West Bengal*, which laid down guidelines to prevent arbitrary arrests and custodial abuse.
According to the court, these protections assume even greater significance in cases under the NDPS Act, where the law prescribes stringent punishments and imposes strict conditions for granting bail. As a result, investigating agencies are expected to strictly follow all procedural requirements prescribed under the law.
The judge held that failure to prepare a properly witnessed arrest memo amounts to non-compliance with the procedure established by law. Such a lapse, the court said, directly affects the legality of the arrest and detention of the accused.
The order further noted that Section 62 of the BNSS requires arrests to be carried out in accordance with the provisions of the Sanhita, making compliance with Section 36 mandatory. Once an arrest is found to be unlawful, constitutional protections available to the accused would prevail over the restrictive bail provisions contained in Section 37 of the NDPS Act, the court observed.
Concluding that the omission could not be treated as a minor procedural defect, the court held that the failure to prepare an arrest memo constituted a violation of the applicant’s rights under Article 21 of the Constitution and entitled him to be released on bail.
