Serina Bibi vs The State Of West Bengal on 13 May, 2025

Calcutta High Court (Appellete Side)

Serina Bibi vs The State Of West Bengal on 13 May, 2025

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL REVISIONAL JURISDICTION
                           APPELLATE SIDE

PRESENT:

THE HON'BLE DR.JUSTICE AJOY KUMAR MUKHERJEE

                         CRM (NDPS) 244 of 2025

                              Serina Bibi
                                   Vs.
                        The State of West Bengal


For the petitioners                  :       Mr. Souvik Mitter
                                             Mr. Angshuman Chakraborty
                                             Mr. Shashanka Sekhar Saha


For the state                        :       Mr. Sanjay Banerjee
                                             Mr. Arfeen Begum


Heard on                             :       24.04.2025


Judgment on                          :       13.05.2025


Dr. Ajoy Kumar Mukherjee, J.

1. The petitioner herein, who is a lady accused, was arrested on

04.02.2025 in connection with NDPS Case No. 11 of 2025 and since then

she is in custody and therefore prays for bail on any terms and condition.

2. Prosecution case in a nutshell is that on the basis of a credible source

information that one woman will be coming at Khodar bazar Mondal Para to

deal with huge quantity of heroin for money, the complainant along with

other police personnel Baruipur Police Station had been to the spot near

Ashma Hotel and met the source at 11.25 hrs. On the same day at about

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16.25 hrs the complainant noticed a lady with a Nylon bag in hand was

coming and on being identified by the source, the complainant and his team

followed her. After a while they noticed that the lady entered inside a house

and then the complainant and his team entered the house and detained the

lady and another person, when the two detainees admitted that they have

kept heroin inside the house. Then one Abdus Samad Mollah arrived and

said it was his house and he became an independent witness. The said two

detainees were served notices under section 50 NDPS Act. From the said

house 909 gms. heroin like substance and Rs. 26.43 lakhs was recovered.

3. Mr. Sanjay Banerjee ld. Counsel appearing on behalf of the State

strongly opposed the bail prayer contending that the search cum seizure

process was done in between 16.50 hrs to 20.25 hrs on 04.02.2025. He

further submits that entire process of search and seizure was videographed.

Moreover, during the entire process LC/3437 Barnali Dutta of Baruipur P.S.

was present with the petitioner and no male police personnel interacted with

her. Whatever questioning was done to her was done by said lady constable

and thereafter she was arrested after performing all legal formalities

regarding arrest and seizure, the case was started. The petitioner Serina

Bibi was found in joint possession 909 gms of heroin and Rs. 26,43,600/-

cash inside the premises owned by her son in law. Relying upon the

judgment reported in (1994) 3 SCC 440 petitioners contended that

imposition of restraint in the present case by physical act or apprehension

of the petitioner completes the process of arrest.

4. Mr. Banerjee further submits that in the present case the informant

along with his team and lady constable followed the petitioner into the

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house of her son in law at around 16.25 hrs, when there was day light.

Thereafter, the petitioner was in complete control of the police personnel

and her movement was totally restricted and she had no option of leaving

the premises and as such she can be deemed to have been arrested at 16.50

hrs, when the search and seizure started. In this context he further stated

that the fact that thereafter contraband was recovered from the said

premises and she was informed of her grounds of arrest, the subsequent

arrest is formality. Accordingly he submits that there is no violation of

article 21 or 22 of the Constitution of India. There is also no allegation of

custodial torture. Mr. Banerjee thus submits that the provisions of sec 43(5)

of Bharatiya Nagarik Suraksha Sanhita (BNSS) are merely procedural in

nature and though they are expected to be followed honestly but there may

be cases where there are difficulties to fulfil the requirements instantly and

therefore merely because the arrest was formalised after sun set, it cannot

be said that arrest was illegal. Considering the gravity of allegation and that

conditions imposed in section 37 clearly attracts in this case the prayer for

bail should be rejected.

5. Mr. Souvik Mitter learned Counsel appearing on behalf of the

petitioners submits that the petitioner is a lady and had been arrested from

inside the house of her son in law, from where the alleged contraband had

been recovered but nothing had been seized from exclusive possession of the

petitioner. Moreover, the arrest was done by male Sub-Inspector in violation

to section 43(5) of BNSS) which states that save and except in exceptional

circumstances no women shall be arrested after sunset and before sunrise

and where exceptional circumstances exists the women police officer shall

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by making any written report required to obtain the prior permission of the

judicial magistrate of the 1st Class, within whose local jurisdiction, the

offence is committed or the arrest is to be made. In the present case no such

written permission was obtained from magistrate and as such, the arrest is

void ab initio, since arrest was made between sunset and sunrise without

any written permission from the local judicial magistrate.

6. Contradicting the argument advanced on behalf of the State of West

Bengal, the petitioners submits that there cannot be any deemed arrest at

16.10hrs and thereafter in between 20.30 hrs and 20.35 hrs, when the

petitioner were arrested after being communicated with the grounds of

arrest. Seizure list shows the time is 16.50 hrs and 20.25 hrs. Thus the

seizure was after the petitioner was kept under arrest, so the chance of

planted seizure is apparent and hence the petitioner is entitled for bail. He

further submits that the judgment relied by the State reported in (1994) 3

SCC 440 has got no application in this case, since the judgement was

passed in 1994 but section 46(4) of Cr.P.C, giving special protection about

arrest of women accused came into force after 23.06.2006.

7. He further contended that even the notice under section 50 of the

NDPS Act was allegedly served on the petitioner by a male officer at 16.10

hrs and that since then till the time of arrest at 20.30 hrs, no lady officer of

SI rank was present and hence the same is bad in law and for that reasons

also the petitioner is entitled to be released on bail. He further submits that

in compliance of ratio laid down in Vihaan Kumar (supra), neither the

petitioner nor her friend relative or any nominated person was informed

about the grounds of arrest in writing and as the arrest is not in accordance

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with law the remand is illegal and the petitioner is entitled to be released on

bail. In this context petitioner relied upon following judgments:-

(i) Vihaan Kumar Vs. State of Haryana and Anr. reported in 2025

INSC 162

(ii) Ashish Kakkar Vs. UT of Chandigarh dated 25.03.2025 passed

by the Hon’ble Supreme Court in Criminal Apeeal No. 1518 of

2025

(iii) Kavita Manikikar of Mumbai Vs. CBI BS and FC reported in

2018 SCC Online Bom 1095

(iv) Bharti S. Khandhar Vs. Maruti Govind Jadhav and others

reported in 2012 SCC Online Bom 1901

8. I have considered submissions made by both the parties.

9. Prosecution case is that informant along with one police personnel

belonging to Special Task Force, West Bengal followed the petitioner into the

house of her son in law at around 16.25 hrs. before sunset and such fact

has not been denied or disputed by the petitioner. Accordingly it is the case

of the prosecution that since that time the petitioner is on complete control

of the police personnel and her movements were totally restricted within the

house of her son in law and she was not allowed to leave the premises at

any point of time. It is their further case that search and seizure process

was done in between 16.50 hrs to 20.25 hrs on 04.02.2005 and that both

the suspect were formally arrested at the time given in the arrest memo and

the entire process of that search and seizure was videographed. It is further

case of the prosecution that during entire search and seizure process lady

constable was all along there with the lady detainee/petitioner and no male

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police personnel was allowed to interact with her and the entire questioning

was done to her by the lady constable. During search and seizure 909 gms

of heroin was recovered in the possession of petitioner and the other

accused in three transparent poly packets full of dry light brown colour

substance from inside the Nylon hand bag. During search and seizure

accused Mongaleswar Sk. handed over from metal tank containing huge

amount of cash of Rs. 26,43,600/- and on further search, different types of

golden colour ornaments seem to be gold were also recovered from there,

which the accused persons allegedly confessed to be purchased from selling

the illegal narcotics substance.

10. Therefore, the points for consideration in the present case is whether

petitioner being a lady accused was lawfully arrested, as arrest memo shows

that the time of arrest is 20.35 hrs.

11. The procedure of arrest is laid down in chapter V of Bhartiya Nagarik

Suraksha Sanghita (in short 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.

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(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.”

12. 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.”

13. 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

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seizure or detention of the person in the manner known to law, which is so

understood by the person arrested.

14. In the present context there is no dispute about the fact that the

petitioner was deprived of her personal liberty to go where she pleases and

she was confined within the house of her son-in-law from 16.50 hrs. i.e.

before the sunset.

15. Learned Counsel appearing on behalf of the petitioner submits when

the said judgment was passed in the year 1994 neither section 46 of the

Cr.P.C. nor section 43 of the BNSS was in force which provides special

protection about arrest of a female accused and as such the court had

considered the issue of arrest of a lady accused in the context of the law that

was prevailing at that relevant point of time. As such ratio laid down in the

said case is not applicable in the present context.

16. I am not agreeable with the submissions made by the Mr. Mitter since

what was discussed in the said judgment was the meaning of arrest for all

purposes and for all times. The term arrest cannot be defined other than the

definition given therein that the arrest means to restrict a person’s

movement and it signifies a restraint of the person depriving his personal

liberty to move anywhere he or she pleases irrespective of the fact at what

time it was recorded formally in the memo of arrest.

17. When similar question was raised in a NDPS Case before a co-ordinate

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. The

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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.”

18. Accordingly, in the instant case I have no hesitation to say that the

imposition of restrain undisputedly put on the petitioner at least from 16.50

hrs. from which time she was deprived of her personal liberty to go where

she pleases and the police officer restrained her free movement and for

which she must be deemed to have been arrested at 16.50 hrs. and in this

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. It is also the case of the petitioner that a

lady officer was present there and the ground of arrest in written form was

given to the petitioner and she was produced before the learned Magistrate

on 05.02.2025 within 24 hrs.

19. Leaned counsel appearing on behalf of the petitioner relied upon the

judgment of Bombay High court in Bharati S. Khandhar Vs. Maruti

Govind Jadhav and Others reported in 2012 SCC Online Bom 1901 but

on perusal of paragraph 13 it appears that the accused in that case was

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brought to the police at 5.30 p.m., admittedly when the police officer was

not having the copy of non bailable warrant of arrest by the court and for

which arrest was not effected till 8.45 p.m. on the said night and the arrest

was made at 8.45 p.m. and no prior permission of the judicial magistrate

was taken. Accordingly said case is factually distinguishable. The other

Bombay High Court judgment relied by the petitioner in reported in Kavita

Manikikar of Mumbai Vs. Central Bureau of Investigation BS & FC,

through its Standing Counsel of Bombay and Another reported in 2018

SCC Online Bom 1095 states that she was called on 20.02.2018 at 15.50

hrs. in the CBI office Mumbai for the purpose of investigation and she was

placed under arrest formally at 20.00 hrs, as during investigation it revealed

that she was not co-operating and there was a strong suspicion that she

may abscond if not arrested and therefore, in order to unravel large

conspiracy in the fraud, she was placed under arrest formally which was

carried out on 20.00 hrs. Accordingly it is clear that when she was called for

by CBI officer it was not in the mind of the CBI officers to arrest her but

during course of interrogation she did not co-operate and there was

apprehension of her absconsion, and due to development of situation CBI

decided to arrest her after sunset which makes it clear that there was no

intent of arrest before sunset and it developed later on and for which it is

also factually distinguishable with the present case. In the case of Ashish

Kakkar Vs. UT of Chandigarh. Criminal appeal no. 1518 of 2025 there is

a clear non-compliance of the mandate under section 41-A of the Code and

the arrested person was not heard at the time of remand and the grounds of

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arrest was not furnished to the arrested person which violated article 22 (1)

of the constitution of India, which is not the case in the instant proceeding.

20. In such view of the matter I find that there is nothing to say that the

arrest of the petitioner was made in violation of section 43 of the BNSS or for

that matter it can be said that the arrest of the petitioner was not lawful.

21. Since from the facts and circumstances of the case, the conditions

imposed in section 37 of the NDPS Act clearly attracts in the present case

the prayer for bail is rejected.

22. CRM (NDPS) 244 of 2025 thus disposed of.

Urgent Xerox certified photocopies of this Judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(DR. AJOY KUMAR MUKHERJEE, J.)

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