The Tripura High Court recently delivered a significant judgment on bail applications under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), where procedural violations in arrest under Section 36 of the Bharatiya Nyaya Sanhita, 2023 (BNSS) were alleged. Despite these violations, the Court rejected bail, emphasizing that the twin conditions under Section 37 of the NDPS Act override procedural non-compliance, aligning with recent Supreme Court precedent.
Background & Facts
The Dispute
The case involves four accused persons - Sri Sujit Das, Sri Suman Das, Sri Rupak Sarkar, and Sri Raju Das - who were arrested on 30.09.2025 in connection with Case No. 04/CL/NDPS/DPF/AGT/2025-26 under Sections 21(C)/22(C)/23(C)/25/25A/28 and 29 of the NDPS Act. The complaint was filed by Rahul Sharma, Inspector, Divisional Preventive Force (DPF), Customs Division, Agartala, alleging that on 29.09.2025, based on secret information, a team led by him intercepted a truck (No. TR061767) near Khowai Chowmuhani. Three occupants, including the driver, were detained after handing over a white plastic sack containing 11.03 kg of methamphetamine tablets (yaba). Upon further search, two trolley bags hidden behind sacks of ginger were recovered, containing additional blue and black plastic sachets of yaba tablets.
Key Facts
- Date of Incident: 29.09.2025 (ambush and seizure)
- Date of Arrest: 30.09.2025
- Contraband Recovered: 11.03 kg of methamphetamine tablets (yaba)
- Arresting Officer: Rahul Sharma, Inspector, DPF
- Alleged Violations:
- No arrest memo attested by a family member or respectable person from the locality, as required under Section 36 of BNSS.
- Accused not informed of their right to have a relative or friend notified of their arrest.
- Statements of seizure witnesses recorded on 20.12.2025, nearly three months after the seizure.
Procedural History
- 29.09.2025: Seizure and arrest of accused persons.
- 30.09.2025: Accused remanded to custody.
- 20.12.2025: Statements of seizure witnesses recorded.
- 2026: Bail applications filed before the Tripura High Court (B.A. Nos. 72, 74, 75, and 76 of 2026).
- 23.04.2026: Hearing of bail applications.
- 29.04.2026: Judgment delivered, rejecting bail.
Relief Sought
The petitioners sought bail on the grounds of:
- Non-compliance with Section 36 of BNSS during arrest.
- Delay in recording statements of seizure witnesses.
- Violation of constitutional rights under Articles 21 and 22 of the Constitution of India.
The Legal Issue
The central question was whether non-compliance with procedural safeguards under Section 36 of BNSS - such as the failure to attest the arrest memo by a family member or respectable person and the failure to inform the accused of their rights - vitiates the arrest and entitles the accused to bail under the NDPS Act, notwithstanding the twin conditions under Section 37.
Arguments Presented
For the Petitioner
- Procedural Violations: The arresting officer failed to comply with Section 36 of BNSS, which mandates:
- Attestation of the arrest memo by a family member or respectable person from the locality.
- Informing the accused of their right to have a relative or friend notified of their arrest.
- Delayed Statements: Statements of seizure witnesses were recorded on 20.12.2025, nearly three months after the seizure, casting doubt on the credibility of the prosecution’s case.
- Constitutional Safeguards: Reliance was placed on D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], which held that non-compliance with procedural safeguards during arrest violates Articles 21 and 22 of the Constitution.
- Precedents:
- Romila Thapar v. Union of India [(2018) 10 SCC 753]: Emphasized the importance of independent witnesses during arrest.
- Amirul Islam v. State of Assam [Bail Appln./3650/2025]: Held that violation of Section 36 of BNSS overrides the embargo under Section 37 of the NDPS Act.
- Ansar Ali v. State of West Bengal [CRM No. 5708 of 2018]: Observed that inconsistencies in seizure and arrest documents rebut the statutory restrictions for bail under Section 37.
- Chandra Bahadur Tamang v. State of West Bengal [CRM (NDPS) No. 435 of 2023]: Granted bail for non-compliance with Section 41B of Cr.P.C. (now Section 36 of BNSS).
- Vijay Singh v. Union of India [SLP (Crl.) Dairy No. 43071/2024]: Held that Article 21 overrides Section 37 if there is undue delay in trial.
- Directorate of Enforcement v. Subhash Sharma [(2025) 1 SCR 1409]: Observed that violation of Articles 21 and 22 vitiates the arrest, entitling the accused to bail.
For the Respondent
- Non-Obstante Clause: Section 37 of the NDPS Act starts with a non-obstante clause, overriding provisions of the Cr.P.C. or BNSS.
- Twin Conditions: Bail under Section 37 can only be granted if:
- There are reasonable grounds for believing the accused is not guilty.
- The accused is not likely to commit any offence while on bail.
- Precedents:
- Narcotics Control Bureau v. Mohit Aggarwal [Criminal Appeal Nos. 1001-1002 of 2022]: Held that reasonable grounds must be credible and plausible.
- State of Punjab v. Sukhwinder Singh [SLP (Crl.) No. 5020 of 2026]: Reiterated that the twin conditions under Section 37 are mandatory and cannot be relaxed even for prolonged incarceration.
- Prima Facie Evidence: The case diary contains corroborative materials and a forensic report confirming the presence of methamphetamine and caffeine in the seized tablets.
The Court's Analysis
The Court examined the submissions and the legal framework governing bail under the NDPS Act, particularly Section 37, which imposes stringent conditions for granting bail. The Court observed:
"The provision casts upon the Court a duty to record, before enlarging an accused on bail, its satisfaction on two cumulative conditions, first, that there exist reasonable grounds for believing that the accused is not guilty of the offence charged; and second, that he is not likely to commit any offence while on bail and such provisions of Section 37 is mandatory and not merely directory, and that an order granting bail without such recorded satisfaction stands vitiated and cannot be sustained."
The Court relied on the recent Supreme Court decision in State of Punjab v. Sukhwinder Singh [SLP (Crl.) No. 5020 of 2026], which held that:
- The twin conditions under Section 37(1)(b)(ii) of the NDPS Act are mandatory and cannot be relaxed merely on the ground of prolonged incarceration.
- The right to speedy trial under Article 21 must be read harmoniously with Section 37 and cannot override it.
The Court acknowledged the procedural violations under Section 36 of BNSS but held that these lapses do not vitiate the arrest to the extent of entitling the accused to bail, given the non-obstante clause in Section 37 and the prima facie evidence against the accused. The Court noted:
"In the case diary, there are prima facie materials corroborating the statements of witnesses regarding the recovery and seizure of huge quantity of contraband items from the accused persons. The Forensic authority, after examining those items, also submitted a report confirming the presence of methamphetamine and caffeine in those tablets. Therefore, the rigors of Section 37 of the NDPS Act are satisfied in this case."
The Verdict
The Court rejected the bail applications of all four accused persons. The judgment held that:
- The twin conditions under Section 37 of the NDPS Act were satisfied based on the prima facie evidence and forensic report.
- Procedural violations under Section 36 of BNSS, while serious, do not override the mandatory embargo under Section 37.
- The non-obstante clause in Section 37 prevails over procedural lapses in arrest.
What This Means For Similar Cases
The Twin Conditions Under Section 37 Are Non-Negotiable
- Practitioners must note that Section 37 of the NDPS Act imposes mandatory twin conditions for bail:
- Reasonable grounds for believing the accused is not guilty.
- Accused is not likely to commit any offence while on bail.
- These conditions cannot be relaxed even in cases of prolonged incarceration or procedural violations during arrest.
Procedural Compliance Is Critical but Not Conclusive
- While Section 36 of BNSS mandates procedural safeguards during arrest (e.g., attestation of arrest memo, informing the accused of their rights), non-compliance does not automatically entitle the accused to bail under the NDPS Act.
- Courts will harmoniously interpret constitutional rights under Articles 21 and 22 with the special provisions of the NDPS Act, prioritizing the non-obstante clause in Section 37.
Forensic Evidence Strengthens Prosecution’s Case
- Forensic reports confirming the nature of contraband (e.g., methamphetamine, caffeine) play a pivotal role in satisfying the twin conditions under Section 37.
- Defence counsel must scrutinize the timing and authenticity of forensic reports, as delays or inconsistencies may weaken the prosecution’s case.
Delay in Recording Statements Can Be a Double-Edged Sword
- Delayed recording of witness statements (e.g., three months after seizure) can cast doubt on the prosecution’s case, as seen in Ansar Ali v. State of West Bengal.
- However, if the case diary contains corroborative materials and forensic evidence, courts may still uphold the rigors of Section 37.
