Kolkata: Observing that an arrest begins once an individual’s liberty to move anywhere is restricted irrespective of the time mentioned in the arrest memo, Calcutta High Court rejected the bail petition of a woman who alleged she was formally booked by the police after sunset in a narcotic case.
The bench of Justice Ajoy Kumar Mukherjee was moved by the petitioner for bail. On receiving credible intelligence that the petitioner would engage in a transaction involving a large quantity of heroin, the police on February 4, 2025, at approximately 4:25 pm, accompanied by a lady constable, followed the petitioner into a house owned by her son-in-law. Police then detained her and another person after they admitted to possessing heroin. A search conducted between 4:50 pm and 8:25 pm, videographed in the presence of a lady constable, led to recovery of narcotics. The petitioner was formally arrested at 8:35 pm, as per the arrest memo and produced before a magistrate within 24 hours. The petitioner’s counsel argued that the arrest, formalised at 8:35 pm (after sunset) was conducted by male sub-inspector without prior written permission from a judicial magistrate of the first class, as required under Section 43 (5) of BNSS for arresting a woman after sunset. This rendered the arrest invalid.
Further, the contraband was recovered from the petitioner’s son-in-law and not from her exclusive possession. Notice under Section 50 NDPS Act was allegedly served by a male officer at 4:10pm, and no lady officer was present during search and seizure, violating procedural norms.
The court held that an arrest occurs when a person’s personal liberty is restricted, irrespective of formal documentation. The petitioner’s confinement within the house from 4:50 pm, before sunset, constituted a “deemed arrest”, negating the claim of a post-sunset arrest violation under Section 43(5) of BNSS.
The presence of a lady constable during the search and seizure, coupled with videography, ensured procedural fairness. The court found no evidence that a male officer served the Section 50 notice or interacted with the petitioner, dismissing the petitioner’s claims. Further, the court found no prima facie evidence to suggest petitioner was not guilty.