THE GOAN NETWORK
MARGAO
In a significant ruling, the South Goa Sessions Court has said it would amount to an illegal arrest if the police officer arrests a person without preparing a valid and properly witnessed arrest memo mandated by section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNNS), 2023.
While releasing an applicant Ishu @ Yashwant Sharma, who was arrested by the Canacona police in a NDPS case, South Goa Sessions Judge Sharmila Patil has asserted that Section 36 of the BNSS is not an empty formality, but is introduced in BNSS, 2023 to safeguard the constitutional right of the person guaranteed under Article 21 of the Constitution of India.
“The history of such an arrest memo to be signed by his relative or a respectable member of the locality is found in the guidelines in the land mark Judgment of D.K. Basu (supra). Such mandatory compliance becomes even more mandatory when the offences are grave and the punishment is strict as envisaged under the NDPS Act. Since the NDPS Act provides for strict punishment, the strict procedure provided under the NDPS Act and the BNSS requires to be followed”, the Judge observed while releasing the applicant on bail.
“In the present case there is no arrest memo and the arrest panchanama although mentions the date and time of the arrest cannot be equated with an arrest memo. The procedural requirement of Section 36 of BNSS having an independent local witness attest the arrest memo are inherited from the Supreme Court land mark Judgment and the guidelines in D. K. Basu (supra). This requirement emanates directly from the Article 21 of the Constitution of India. If the police officer arrests a person without preparing a valid and properly witnessed arrest memo, the said arrest would certainly be an illegal arrest”, the judge said.
The Judge added: “An arrest in violation of the explicit and unambiguous words of Section 36 of BNSS would amount that the police officer making such an arrest has failed to follow the procedure established by law which would render the detention of the arrestee illegal. That apart, Section 62 of the BNSS also mandates that the arrest needs to be done according to the Sanhita which implies that the arrest needs to be done in accordance with Section 36 of the BNSS. Once it is concluded that the arrest is illegal, the twin conditions under Section 37 of the NDPS Act would be overruled by the Constitutional rights of the applicant”, the Judge stated.
“The discussion makes me believe that non preparation of the arrest memo by the investigating officer cannot be termed as a technical irregularity but needs to be accepted as a violation of the constitutional right of the applicant under Article 21. That being so, I concur with the arguments of Advocate for the applicant that since the mandatory provision of Section 36 is not complied, the applicant is entitled for bail”, the judge said.
