Procedural safeguards in arrests must be followed, yet compliance with the presence of female officers during drug-related arrests can uphold validity despite challenges to legality.

ORDER

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973 , seeking regular bail.

2. The petitioners are accused Nos. 1 and 2 in Crime No.746/2023 of Kunnamkulam Police Station, having allegedly committed offences publishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act .

3. The prosecution case is that on 04.06.2023 at about 9.00 p.m., accused Nos. 1 and 2 were found to have been in possession of 17.5 grams of MDMA while travelling in a motorcycle with registration No.KL 46 S 9198 through Guruvayoor - Kunnamkulam road. It is stated that the contraband MDMA was recovered from the pocket of the pants worn by the first accused. The second accused is said to have been assisting the first accused for the purpose of carrying the above contraband MDMA for sale to their customers and thereby committed the above offence.

4 . Learned counsel appearing for the petitioner Sri. John Sebastian Ralph. V argues that the chemical analysis report has not been made available so far, and the same is in violation of Rule 14 of the Narcotic Drugs and Phototropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, that mandates the report will be made available to the magistrate court within 15 days of the sample reaching the laboratory.

It is also his argument that the arrest was made after sunset, and since the petitioners are ladies, the arrest should have been made only by the woman police officer after obtaining prior permission from the concerned JFCM, and since this procedure was not followed, there is a violation of Section 46 (4) of the Cr.P.C. No proof or any sanction was obtained from the jurisdictional magistrate before arresting the petitioners. Since the arrest itself is illegal, which would vitiate even the trial entitling the accused to acquittal, the same can be considered at the time of considering the bail application. Section 60A of the Cr. P.C. is also violated. He relies on the judgment of the Bombay High Court inBharati S. Khandhar v. Maruti Govind Jadhav, PSI and others ( 2013 KHC 2291 ) to support his contention as regards Section 60A and 46(4) of the Cr.P.C.

5. Learned Public Prosecutor opposing the bail application submitted that the presence of the woman police officer is mentioned and is clearly revealed from the records and that this Court inLissy v. State of Kerala ( 2012 KHC 256 ) has held that there is no provision made in the NDPS Act that while conducting the search of a female under Section 42(1) or 43 of the NDPS Act, such officer must be a female officer empowered under Section 42(1) or 43 of the Act. The search and the arrest made by female police officers under the direct control superintendence and as directed by a male police officer is legal and valid. If the assistance of woman police officers is taken, the same has to be accepted as legal and valid and in no way violates the the mandatory provisions of the NDPS Act. The judgment of the Hon'ble High Court of Madras in WP No.29972/2015 is also relied on to contend that in exceptional circumstances, an immediate arrest is permitted, though, in the presence of a woman police officer, the requirement for submission of a written report for obtaining prior permission of the judicial magistrate can be a post-arrest even, as practically such procedures would delay the arrest, creating avenues for law and order disturbance and danger to the public. Since the petitioner was arrested in that case in the presence of a woman police officer, it was held that there was compliance. The Supreme Court dealing with a similar contention inChristian Community Welfare Council and another v. Government of Maharashtra, and another (1995 Crl LJ 4223) (Crl WP No.204/1993), as how the arrest was made are all matters which require evidence to show whether there is any infraction. Learned counsel for the petitioners cites the judgment of the Supreme Court inState of Punjab v.

Baldev Singh [1996 (6)