IMPORTANT POINT
Bail – Bar under Section 37 of N.D.P.S. Act cannot be invoked in a case of illegal detention.

JUDGMENT

Sashikanta Mishra, J.—When can a person said to be under arrest? This is the question to be determined in the present application filed under Section 482 of Cr.P.C. The Petitioners are accused persons in Special Case No.280/2022 arising out of Sahadevkhunta P.S. Case No.352/2022 of the Court of learned Special Judge, Balasore under Section 21(c)/29 of the N.D.P.S. Act.

2. The brief facts of the case are that on 27th October, 2022, the I.I.C. of Sahadevkhunta P.S. received information that a drug deal is due to take place at a lonely place in Fuladi By-pass area of Balaosre Town. A raid was conducted after observing the required formalities and the present Petitioners were nabbed while carrying huge quantity of brown sugar. Other culprits managed to flee from the spot. On search being conducted of the accused persons, four packets containing 1101 gram of brown sugar was recovered, which was seized. After completion of the necessary formalities, the Petitioners were arrested and taken to the Police Station. On the next day, the accused persons were sent for medical examination and thereafter forwarded to the residential office of the learned Special Judge, Balasore.

3. A petition was filed on 4th November, 2022 basically alleging therein that the Petitioners were not produced before the learned Special Judge within 24 hours of their arrest. It was also alleged that they were actually arrested between 5.40 P.M. to 6.20 P.M. during which time the seizure lists were prepared and thereafter they were kept in Sahadevkhunta P.S. However, they were forwarded to the Court of the Special Judge in his residential office after 11 P.M. on the next day i.e. on 28th October, 2022. As such the statutory requirement of producing the arrested accused before the Court within 24 hours was clearly violated. As regards the time taken for journey, it was stated in the petition that the distance from Sahadevkhunta P.S to the Court is within 150 to 200 mtrs. and the distance between Fakirmohan Medical College and Hospital and the Court is also less than 2 km. Therefore, by no stretch of imagination the time taken for journey could be more than half an hour at the most. On such grounds it was pleaded that the accused persons should be released on bail having regard to the provisions of Sections 57 and 167 of Cr.P.C. read with Article 22 of the Constitution of India.

4. Learned Special Judge heard the petition and after considering the rival contentions, held vide order dated 15th November, 2022 that there is no cogent material on record to show that the accused persons were detained in police custody for more than 24 hours from the time of their arrest. Learned Special Judge also took note of the gravity of the alleged offence and the bar under Section 37 of the N.D.P.S. Act and rejected the petition. The said order is impugned in the present application.

5. Heard Mr. D.P.Dhal, learned Senior counsel, with Mr. B.S.Dasparida, learned counsel for the Petitioner and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.

6. Mr. Dhal submits that the moment the Petitioners were apprehended the same amounts to arrest whatever may be the time mentioned in the arrest memo because their liberty must be held to have been curbed from that moment onwards. Therefore, regardless of the time mentioned in the arrest memo prepared subsequently, the Petitioners must be deemed to have been arrested, the moment they were apprehended and searched. Referring to the F.I.R. and other connected documents, Mr. Dhal submits that Police received information around 4.30 P.M. and reached the spot and apprehended the Petitioners at 5.00 P.M. The search of the Petitioners was carried out at 5.30 P.M. and three seizure lists were prepared at 5.40 P.M., 6 P.M. and 6.20 P.M. The F.I.R. was lodged at 7.30 P.M. The arrest memos were prepared at 11 P.M. They were sent for medical examination on the next day at 8.30 P.M. and were ultimately produced before the Special