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2025 DAILYLAW 3294 (CAL)

In the matter of : Jeaul Sheikh @ Senaul v. .

2025-09-23

Ajoy Kumar Mukherjee

body2025
JUDGMENT : AJOY KUMAR MUKHERJEE, J. 1. BSF apprehended the petitioner of CRM (NDPS) 573 of 2025 Zanaul Seikh @ Senaul on 26.02.2025 at about 03.30 a.m. and petitioner of CRM (NDPS) 581 of 2025 Rakib Molla @ Molla was apprehended by BSF at about 7.40 p.m. on 20th April, 2025, with commercial quantity of codein phosphate cough syrup in their possession. It is alleged by counsel for petitioners in both the cases that both the accused persons were produced before the court after 24 hours of their confinement, violating mandate of the constitution as well as provisions of BNSS. 2. Petitioner of CRM (NDPS) 573 of 2025,was apprehended at 3.30 a.m. on 26.02.2025 but police registered case at 7.30 p.m. on the same day, when he was produced before police by BSF and the petitioner was produced before court at 10.30 a.m. on 27.02.2025. Similarly, in case of CRM (NDPS) 581 of 2025, petitioner was apprehended by BSF on 20.04.2025 at 19.40 hrs but FIR was registered on next date i.e. 21.04.2025 at 15.05 hrs and produced before court on 22.04.2025 at about 10.30 a.m. 3. Petitioners’ respective counsels argument is that petitioners’ were detained in custody for more than 24 hrs before they were produced before court, in violation of article 20 (2) of the Constitution of India, read with section 57 of the Cr.P.C., corresponding to section 58 of the BNSS. Counsel for the petitioners further argued that the investigating agency while arresting the petitioners, failed to communicate with them or any person nominated by them, with grounds of arrest either orally or in writing and thereby making it difficult for them to seek legal advice and to prefer an application for their release on bail before the Court concerned in time. 4. It was further argued that the requirement of informing the persons arrested of the grounds of arrest is not a mere formality but a mandatory constitutional requirement and it is the fundamental right of every person arrested and detained in custody, to be informed of the grounds of arrest, as soon as possible and it is also his fundamental right that he will be produced before the concerned court within 24 hrs, when he was apprehended by the authority. Since, the said constitutional provisions have not been followed in the instant case, the arrest has been vitiated and the petitioners of respective applications may be granted bail on any terms and conditions. 5. Mr. Kallol Mondal, learned Senior Counsel appearing on behalf of the BSF submits that it is true that the BSF had apprehended petitioner on 20th April, 2025 at 19.40 hrs. and FIR was lodged on the next day i.e. 21st April 2025 at about 3.05 p.m., in case of petitioner of CRM (NDPS) 581 of 2025 and in the context of petitioner of CRM (NDPS) 573 of 2025, though petitioner was apprehended at 3.30 a.m. but FIR was lodged on 7.30 p.m. on that day, when they produced the petitioner to the police but Mr. Mondal argued that delay in producing the petitioner before the police was not intentional or wilful. It was occasioned purely due to operational exigency of BSF and due to deployment in extreme forward border area, coupled with the necessity to establish the identity, nationality of the detained persons, preparation of mandatory legal documents, medical examination and compliance with instruments required by the police. The delay is therefore, unavoidable and was due to procedural and operational requirements and therefore violation of petitioners constitutional or legal rights does not arise. 6. Mr. Mondal further argued that the Border Security Force Act, 1965 empowers members of the force to apprehend persons suspect of committing cognizable offence, however the said Act does not authorize the BSF to investigate offence under the NDPS Act or BNSS, or to file charge sheets. The BSF is a security force, not a police force or investigating agency under chapter XIII of the BNSS and its role ends upon the safe handover of the accused and contraband to the local police. In this context he also referred section 58 of the BNSS which used the term “police officer” exercising investigation power and therefore, the arrest must be done by a police officer exercising investigative powers. He further argued that the apprehension by BSF is akin to private arrest or arrest by common citizen albeit by a statutory security force. Therefore, the period of private detention counts only when formal arrest begins with the taking custody by the police. He further argued that the apprehension by BSF is akin to private arrest or arrest by common citizen albeit by a statutory security force. Therefore, the period of private detention counts only when formal arrest begins with the taking custody by the police. In the instant case the BSF custody was a preliminary detention to prevent escape across the border and therefore it is not an arrest in the legal sense that triggers section 58 BNSS. The petitioners’ calculation of 38 hrs detention before production before the court is legally not sustainable and the arrest actually started at 7.30 p.m. on 26.02.2025 and 3.05 p.m. on 21.04.2025. 7. Mr. Mondal further argued that section 187 BNSS empowers a magistrate to authorize further detention only when the ‘officer in charge of a police station’ or the ‘police officer making the investigation’ cannot complete investigation within 24 hrs. Therefore, such provisions exclusively applicable to police custody or judicial custody and not the custody by forces like the BSF. Mr. Mondal further argued that even if there is any procedural delay but mere delay in production is not sufficient to grant bail in serious cases, unless malafide intention or actual prejudice is shown. There are reasonable grounds to believe that the accused persons/petitioners have committed the offence and therefore bail cannot be granted to them. The restrictions under section 37 cannot be diluted by placing reliance on alleged technical lapses under the general provisions of BNSS. Procedural irregularities, if any, cannot negate the substance of a commercial quantity seizure particularly in absence of malafide. Accordingly he submits that bail prayer made by the petitioners are liable to be rejected. 8. Mr. Ganguly learned counsel appearing on behalf of the State submits that police have produced the petitioners before the court within 24 hrs. of production of the accused persons in their custody by BSF and he also submits that there is no violation of mandatory provision of article 22 of the Constitution of India and he also prays for rejection of petitioners’ bail prayer. 9. I have considered submissions made by both the parties. 10. of production of the accused persons in their custody by BSF and he also submits that there is no violation of mandatory provision of article 22 of the Constitution of India and he also prays for rejection of petitioners’ bail prayer. 9. I have considered submissions made by both the parties. 10. The points for consideration in the instant proceeding is whether the time of arrest is to be counted when the BSF personnel had apprehended the petitioners or from the time when the FIR was registered, on being handed over to the local police station by the BSF personnel and were formally arrested by preparation of arrest memo by police. 11. Before going to further details let me reproduce Article 22 (1) & (2) of the Constitution of India which reads as follows:- 22. Protection against arrest and detention in certain cases (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. 12. The procedure of arrest is laid down in chapter V of Bhartiya Nagarik Suraksha Sanghita (BNSS) and section 43 of BNSS states how arrest can be made :- “43. (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offence against children, or offence against the State. (4) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. (5) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.” 13. In Directorate of Enforcement Vs. Deepak Mahajan and another reported in (1994) 3 SCC 440 the meaning of the word ‘arrest’ was taken up for consideration by the Apex Court and in para 46 the court held:- “46. The word ‘arrest’ is derived from the French word ‘Arreter’ meaning “to stop or stay” and signifies a restraint of the person. Lexicologically, the meaning of the word ‘arrest’ is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N. [1984 Cri LJ 134 : (1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)] had an occasion to go into the gamut of the meaning of the word ‘arrest’ with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those textbooks and lexicons, it has been held that: “[T]he word ‘arrest’ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.” 14. Accordingly the question of arrest is dependent upon the fact as to whether the person who was sought to be arrested was deprived of his personal liberty to go where he or she pleases. The court categorically held that the essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. 15. In the present context there is no dispute about the fact that the petitioners were deprived of their personal liberty to go where they pleases from the time when they were confined within the custody of BSF. 16. When similar question was raised in a NDPS Case before a co-ordinate Bench of Orissa High Court in Sk Husain and others Vs. State of Orissa, CRLMC No. 3703 of 2022 the court held in para 17 as follows:- “17. What had transpired at the spot at the relevant time as mentioned in the F.I.R. has already been referred to hereinbefore. Thus, there can be no manner of doubt that the Petitioners having been apprehended around 5 P.M. or thereabouts must be deemed to have been arrested at that time. What had transpired at the spot at the relevant time as mentioned in the F.I.R. has already been referred to hereinbefore. Thus, there can be no manner of doubt that the Petitioners having been apprehended around 5 P.M. or thereabouts must be deemed to have been arrested at that time. The effect of endorsing the time of arrest by the arresting officer in the memo of arrest was considered by a learned Single Judge of the Bombay High Court in the case of Ashfak Hussain Allah Detha @ Siddiqui v. The Asst. Collector of Customs, Bombay; reported in (1990) 1 Bom CR 451, wherein it was held as follows; "10. It is thus clear that arrest being a restraint on the personal liberty, it is complete when such restraint by an authority, commences. [The Law Lexicon--P. Ramanatha Aiyar Reprint Edition 1987, page 85.] Whether a person is arrested or not does not depend on the legality of the act. It is enough if an authority clothed with the power to arrest, actually imposes the restraint by physical act or words. Whether a person is arrested depends on whether he has been deprived of his personal liberty to go where he pleases. [ Section 37(1) of the N.O.P.S. Act.] It stands to reason, therefore, that what label the Investigating Officer affixes to his act of restraint is irrelevant. For the same reason, the record of the time of arrest is not an index to the actual time of arrest, The arrest commences with the restraint placed on the liberty of the accused and not with the time of "arrest" recorded by the Arresting Officers." 17. Accordingly, in the instant case I have no hesitation to say that the imposition of restraint undisputedly put on the petitioners from the time they were apprehended by BSF and were thereby deprived of their personal liberty to go where they please and the BSF officer restrained their free movement and for which they must be deemed to have been arrested at 3.30 a.m. on 26.02.2025 and 19.40 hrs. on 20.04.2025 respectively and in such case the effect of endorsing the time of arrest by the arresting officer in the memo of arrest is not an index to the actual time of arrest. on 20.04.2025 respectively and in such case the effect of endorsing the time of arrest by the arresting officer in the memo of arrest is not an index to the actual time of arrest. In fact what has been done at the time mentioned in the arrest memo is only to formalize the arrest already effected long back. 18. Accordingly from the aforesaid authorities it is clear that meaning of “arrest” is to deprive a person of his liberty by legal authority. In view of above in the instant case clearly the accused persons/petitioners had not been produced before the special court within 24 hrs. of their apprehension. The mandate of article 22 (2) is very much clear that the officer who is apprehending/arresting the citizen is forbidden from keeping such person beyond 24 hrs. without any order of the court. It is also constitutional mandate under article 21, that no persons shall be deprived of his liberty except in accordance with the procedure establish in law. The only time permitted by article 22 of the Constitution to be excluded from the said period of 24 hrs. is ‘the time necessary for going from the place of arrest to the court of the magistrate’. Only under two contingencies the condition can be relaxed i.e. when the person arrested is an enemy alien and the second is when the arrest is under any law for preventive detention. In all other cases the detained person in custody must be produced before the court within the said period of 24 hrs. 19. Kerala High Court in this context in Biswajit Mondal Vs. Inspector NCB reported in 2025 SCC Online Kerala 6017 held as follows:- 15. The above legal principles govern the criminal jurisprudence of this country in the matter of arrest of a person. The issue is made complex by the absence of any definition for the term arrest in any statute. However, it is discernible from section 43 of BNSS that an arrest is made by actually touching or confining the body of the person to be arrested, unless there is a submission to the custody by word or action. The erstwhile Section 46 of Cr. However, it is discernible from section 43 of BNSS that an arrest is made by actually touching or confining the body of the person to be arrested, unless there is a submission to the custody by word or action. The erstwhile Section 46 of Cr. P.C. was considered by the Supreme Court in State of Haryana v. Dinesh Kumar, [ (2008) 3 SCC 222 ] and after referring to an earlier decision, observed that “the word ‘arrest’ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases.” 16. In an earlier decision in Directorate of Enforcement v. Deepak Mahajan, [ (1994) 3 SCC 440 ], the Supreme Court had observed that “the word ‘arrest’ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go wherever he pleases. When used in the legal sense in connection with criminal offences, an ‘arrest’ consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by seizure or detention of the person in the manner known to law, which is so understood by the person arrested.” 17. The etymological derivation of the word ‘arrest’ is from the French term ‘Arreter’ meaning ‘to stop or stay’. The term denotes a restraint of the person. Thus, whenever there is a complete restraint on the freedom of movement or a person is held against his interests in curtailment of his liberty by a person in authority, it can be said that the said person is under arrest. Actual restraint either by word or action or conduct would suffice. The term denotes a restraint of the person. Thus, whenever there is a complete restraint on the freedom of movement or a person is held against his interests in curtailment of his liberty by a person in authority, it can be said that the said person is under arrest. Actual restraint either by word or action or conduct would suffice. When a person is prevented by a person in authority from engaging in his activities at his free will the former can be said to have been arrested. The failure, refusal or omission to record an arrest or continuation of an interrogation for prolonged periods without recording arrest, shall not preclude those periods of curtailed liberty as constituting arrest.” 20. In paragraph 20 of the said judgment High Court clearly held that the period of 24 hrs. to produce an accused before the Magistrate commences not when the actual time of arrest is recorded by the police but runs from the time when the accused was effectively detained or his liberty was curtailed. 21. The Telengana High Court in a judgment in Smt. T. Rama Devi Vs. the State of Telengana reported in 2024 Supreme (Telangana) 367 held that the commencement of the period of apprehension for the purpose of calculating the period of 24 hrs as is envisaged under section 57 Cr.P.C. is to be calculated not from the time of the official arrest being shown by the police personnel in the arrest memo but from the time he was initially apprehended or taken into custody. 22. In the instant case the petitioners were produced only after completion of 24 hrs from the time they were apprehended. In view of aforesaid settled proposition of law, I am unable to accept the arguments advanced by ld. Counsel for the BSF that since BSF is a security force their preliminary detention for the purpose of search and seizure, cannot be regarded as arrest. This is also because it may lead the authority to become atrocious. In this context it is also to be mentioned that section 42 of the NDPS Act gives the power to the BSF personnel to make search and seizure which is also part of the inquiry/investigation. 23. This is also because it may lead the authority to become atrocious. In this context it is also to be mentioned that section 42 of the NDPS Act gives the power to the BSF personnel to make search and seizure which is also part of the inquiry/investigation. 23. Therefore, while dealing with their bail application, it appears to me, that the fundamental rights of the petitioners under Article 21 and 22 of the Constitution of India have been violated and therefore it is incumbent upon this court to release the petitioners on interim bail since the arrest in such cases stands vitiated and it is the duty of every court to uphold the fundamental rights guaranteed under part III of the Constitution of India. 24. In such view of the matter the petitioner Jenaul Sheikh @ Senaul in CRM NDPS 573 2025 and Rakib Mulla @ Molla in CRM NDPS 581 2025 may find interim bail of Rs. 20,000/- each with two registered sureties of 10,000/- each of which must be local subject to the satisfaction of learned CJM Malda, and also on condition not leave the geographic limit of Kaliachak P.S. without the leave of the court and also on condition to report IC/OC of Kaliachak P.S. once in a week till further order. 25. It is further ordered that the accused person shall not mis-use the liberty granted by this Court and he shall not tamper with any evidence orally or documentary during the trial. He shall not absent himself on any day during trial and shall not commit any offence while on bail. He shall give his cell phone number to the local police station and shall not change it without prior permission of the trial court and he shall not in any manner try to delay the trial. The petitioner shall not leave the jurisdiction of the trial court without taking leave from the Court below.. 26. Be it mentioned, that anything said herein shall not be construed as an expression of opinion on the merits of the case by this Court. 27. Let both the matters appear ten weeks hence. Urgent photostat certified copy of this order, duly applied for, be given to the parties upon compliance of all requisite formalities.