Orissa High Court
Sk. Hussain And Others vs State Of Orissa on 19 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.3703 OF 2022
(From the order dated 15th November, 2022 passed by
learned Special Judge, Balasore in Special Case
No.280/2022)
Sk. Hussain and others
... Petitioners
-versus-
State of Orissa ... Opposite Party
Advocates appeared in the case through hybrid mode:
For Petitioners: Mr.D.P.Dhal,
Sr. Advocate
-versus-
For Opp.Party: Mr.S.K.Mishra,
Addl. Standing Counsel
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19.5.2023.
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 Judge in his residential
Office at 11.50 P.M. on the next day. On such basis it
is contended by Mr. Dhal that the relevant time for
consideration would be 5 P.M. i.e. the time when the
Petitioners were apprehended since they lost their right
to go wherever they pleased from that moment
onwards. Mr. Dhal further contends that preparation
of the arrest memo is just a formality having no
bearing on the actual time of arrest. Thus, the
Petitioners having been apprehended at 5.P.M. must be
deemed to have been arrested at that time and
therefore, they should have been produced before the
Special Judge within 24 hours after accounting for the
time taken for journey. To buttress his contentions,
Mr. Dhal has relied upon several decisions, which
would be discussed in detail at the appropriate place.
7. Mr. S.K.Mishra, on the other hand, has argued
that there can be no deemed arrest within the meaning
of NDPS Act. The Act authorizes the Police Office to
detain and search any person if he has reason to
believe that the said person has committed an offence
punishable under the Act. Referring to the provision of
Section 42(1)(d) of the Act, Mr. Mishra would argue
that liberty has been given to the Police Officer to
detain and search and if he thinks proper, to arrest
any person whom he has reason to believe to have
committed any offence punishable under the Act. On
such basis, Mr.Mishra contends that the initial
detention of the Petitioners by the Police for the
purpose of search and seizure etc. cannot be treated as
arrest and that arrest must be held to have been
effected only when they were formally arrested and the
memo of arrest was prepared.
8. It would be apposite to deal with the contentions
raised by learned State counsel at the outset since he
has referred to the provisions of the NDPS Act. As
already stated, Mr. Mishra has referred to Section 42 of
the Act, which is quoted herein below;
"42. Power of entry, search, seizure and
arrest without warrant or authorisation.--
(1) Any such officer (being an officer
superior in rank to a peon, sepoy or
constable) of the departments of central
excise, narcotics, customs, revenue
intellegence or any other department of the
Central Government including para-military
forces or armed forces as is empowered in
this behalf by general or special order by
the Central Government, or any such officer
(being an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs
control, excise, police or any other
department of a State Government as is
empowered in this behalf by general or
special order of the State Government, if he
has reason to believe from persons
knowledge or information given by any
person and taken down in writing that any
narcotic drug, or psychotropic substance, or
controlled substance in respect of which an
offence punishable under this Act has been
committed or any document or other article
which may furnish evidence of the
commission of such offence or any illegally
acquired property or any document or other
article which may furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is
kept or concealed in any building,
conveyance or enclosed place, may between
sunrise and sunset,--
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof
and any other article and any animal or
conveyance which he has reason to believe
to be liable to confiscation under this Act
and any document or other article which he
has reason to believe may furnish evidence
of the commission of any offence punishable
under this Act or furnish evidence of holding
any illegally acquired property which is
liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has
reason to believe to have committed any
offence punishable under this Act: Provided
that if such officer has reason to believe
that a search warrant or authorisation
cannot be obtained without affording
opportunity for the concealment of evidence
or facility for the escape of an offender, he
may enter and search such building,
conveyance or enclosed place at any time
between sunset and sunrise after recording
the grounds of his belief.
(2) Where an officer takes down any
information in writing under sub-section (1)
or records grounds for his belief under the
proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate
official superior."
(Emphasis supplied)
9. This Court fails to see as to how the provision
quoted above can apply to the facts of the present case
inasmuch as admittedly, the search, seizure and arrest
of the Petitioners was affected not by entering into any
building conveyance or place but in a public place i.e.
Fuladi By-pass road. There is a specific provision
namely, Section 43 of the Act governing the power of
seizure and arrest in public place, which is quoted
herein below;
"43. Power of seizure and arrest in
public place.--Any officer of any of the
departments mentioned in section 42
may--
(a) seize in any public place or in transit,
any narcotic drug or psychotropic
substance or controlled substance in
respect of which he has reason to believe
an offence punishable under this Act has
been committed, and, along with such
drug or substance, any animal or
conveyance or article liable to
confiscation under this Act, any
document or other article which he has
reason to believe may furnish evidence
of the commission of an offence
punishable under this Act or any
document or other article which may
furnish evidence of holding any illegally
acquired property which is liable for
seizure or freezing or forfeiture under
Chapter VA of this Act;
(b) detain and search any person whom
he has reason to believe to have
committed an offence punishable under
this Act, and if such person has any
narcotic drug or psychotropic substance
or controlled substance in his possession
and such possession appears to him to
be unlawful, arrest him and any other
person in his company. Explanation.--
For the purposes of this section, the
expression "public place" includes any
public conveyance, hotel, shop, or other
place intended for use by, or accessible
to, the public."
10. Of course, clause (b) is similar to clause (d) of
sub-rule (1) of Section 42 inasmuch as the said
provision confers power on the police officer to detain
and search any person whom he believes to have
committed an offence punishable under the Act and if
such person is found to be in possession of a
contraband, arrest him. Such being the provision,
what would then be the effect of Section 57 read with
Article 22(2) of the Constitution of India and Section 57
of Cr.P.C. There is no dispute that the NDPS Act does
not contain any provision akin to the provisions
referred to herein before of the Cr.P.C. but then
Section 36-C of the NDPS Act provides that the
provisions of Cr.P.C. shall apply to the proceedings
before Special Judge. For immediate reference, Section
36-C is quoted herein below;
"36-C.Application of Code to
proceedings before a Special Court-
Save as otherwise provides in this Act,
the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) (including
the provisions as to bail and bonds)
shall apply to the proceedings before a
Special Court and for the purposes of
the said provisions, the Special Court
shall be deemed to be a Court of
Session and the person conducting a
prosecution before a Special Court,
shall be deemed to be a public
Prosecutor."
At this stage it would be useful to refer to
relevant provision of Cr.P.C., which is Section 57 and
is quoted herein below;
"57. Person Arrested not to be
detained more than twenty-four
hours.- No police officer shall detain in
custody a person arrested without
warrant for a longer period than under
all circumstances of the case is
reasonable, and such period shall not,
in the absence of a special order of a
Magistrate under Section 167, exceed
twenty-four hours exclusive of the
time necessary for the journey from
the place of arrest to the Magistrate's
Court."
This provision finds express sanction of the
Constitution through Article 22(2), which is quoted
herein below;
"22(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 of the Court of the
magistrate and no such person shall
be detained in custody beyond the
said period without the authority of a
magistrate."
11. Thus, compliance of Section 57 of Cr.P.C. is in
fact a compliance of the Constitutional provision
referred above and therefore, mandatory. In other
words, if the provisions as above are found to have
been violated, the same would amount to illegal
detention entitling the detainee to be set at liberty.
12. Now coming to the contentions raised by learned
Senior Counsel, this Court takes note of the fact that
as per the F.I.R., upon receipt of credible information
around 4.30 P.M. the Police Party rushed to the spot
and detained the present Petitioners while others
managed to flee. On search, huge quantity of
contraband was recovered from the possession which
was weighed and seized as per the seizure lists
enclosed under Annexure-2 series. The seizure lists
appear to have been prepared at 5.40 P.M., 6 P.M. and
6.20 P.M. The memo of arrest prepared in respect of
the Petitioners, copies of which are enclosed also under
Annexure-2 series, shows that the same were prepared
at 11 P.M. The F.I.R. inter alia, mentions as under;
"xxx xxx xxx xxxx xxx xxx
On arrival of us, some of the persons
could manage to flee away from the spot
in a white colour car and other persons
were trying to flee away from the spot by
riding in two motor cycles and another
person tried to run by holding a heavy
back pack bag. Immediately we caught
hold the person, who was running by
foot, other persons who fled away by
riding two wheelers were also
apprehended after a little chase. On being
asked, they disclosed their names as (1)
Ayub of village-Bada Khedi at present at
Kitiyani, Madhya Pradesh (2) Sk. Hussain
(3) Laden @ Sk. Safiq, (4) Sk. Raju, (5)
Badu @ Sk. Smeer and (6) Rintu Tarei all
are of village Arad Bazar, P.S-
Sahadevkhunta, Dist - Balasore.
xxx xxx xxx xxx."
(Emphasis supplied)
The question is, could the petitioners have left
the place or gone wherever they pleased from that time
onwards? Obviously not.
It is evident that the moment the Petitioners
were apprehended, they lost their liberty inasmuch as
they could not leave the place any more having come
under the control of the Police party.
13. What would be the effect of such a situation is
no longer res integra. In the case of Niranjan Singh v.
Prabhakar Rajram Khas reported in 1980 (2) SCC
559, the Apex court held as follows;
"7. When is a person in custody, within
the meaning of Section 439 CrPC?
When he is in duress either because he
is held by the investigating agency or
other police or allied authority or is
under the control of the court having
been remanded by judicial order, or
having offered himself to the court's
jurisdiction and submitted to its orders
by physical presence. No lexical
dexterity nor precedential profusion is
needed to come to the realistic
conclusion that he who is under the
control of the court or is in the physical
hold of an officer with coercive power is
in custody for the purpose of Section
439. This word is of elastic semantics
but its core meaning is that the law has
taken control of the person. The
equivocatory quibblings and hide-and-
seek niceties sometimes heard in court
that the police have taken a man into
informal custody but not arrested him,
have detained him for interrogation but
not taken him into formal custody and
other like terminological dubieties are
unfair evasions of the
straightforwardness of the law. We
need not dilate on this shady facet here
because we are satisfied that the
accused did physically submit before
the Sessions Judge and the jurisdiction
to grant bail thus arose."
14. Further, in the case of Directorate of
Enforcement v. Deepak Mahajan, reported in 1994
SCC Cri 785, the Apex Court observed as follows:
"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."
15. The aforesaid judgment was relied upon by a
division Bench of this Court in the case of Prabir
Kumar Das v. State of Orissa; reported in 2007 (38)
OCR 585 and it was observed as follows;
"Learned Counsel for the State
submitted that Narayan was not
arrested but even assuming that to be
true, there is no doubt that he was
illegally detained. In this connection, a
reference may be made to the decision
of the Supreme Court in the case
of Directorate of Enforcement v. Deepak
Mahajan and Anr. In paragraph-48 of
the said judgment, the learned Judges
have explained the connotation of the
word 'arrest'. After considering various
judgments, the learned Judges have
come to the conclusion 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 learned Judges
have further clarified that 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."
16. Thus, the ratio laid down in the cases referred
above is that the moment the liberty of a person is
curbed or curtailed, he is said to be under arrest. As
regards arrest, the same has not been defined in
Cr.P.C., but Section 46 of the Cr.P.C. provides the
manner of making arrest as follows;
"46. Arrest how made.
(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.
(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) 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."
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 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 irrelevent. 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. Thus imposition of restraint, in the present case
by physical act of apprehension of the Petitioners,
completes the process of arrest. Therefore, mere
mentioning of a different time in the memo of arrest
prepared subsequently, in the present case nearly 6
hours after the apprehension of the petitioners, cannot
have any relevance whatsoever more so as it only
serves to formalize the arrest already effected long
back. Thus, on the face of the facts mentioned above,
the Petitioners must be deemed to have been arrested
around 5 P.M. on 27th October, 2022 and therefore,
they ought to have been produced before the Special
Judge within 24 hours thereafter excluding the time
taken for journey to the Court. It is stated at the bar
that the distance between the spot i.e. Fuladi By-pass
and/or the Police Station to the Court is not much and
in any case shall not take more than half an hour to
reach. Even allowing two hours as the time taken for
journey from the spot and the medical examination of
the accused persons, the accused persons should have
been produced latest by 7 P.M. on the next day. This
Court however, finds from the record that the accused
persons after being arrested at the spot were taken to
P.S. and detained there for the night and for the entire
day. On 28th October, 2022, they were taken to the
hospital for medical examination at 8 P.M. What was
the reason for such inordinate delay has gone
unexplained. In any case, the time of medical
examination is also found to be beyond 24 hours. As
stated earlier, the Police Officer concerned was under
Constitutional obligation to forward the Petitioners to
the Court of Special Judge within 24 hours, but this
Court finds that the Constitutional provision was
seriously violated, for which the entire period of
detention has to be treated as illegal.
19. Reading of the impugned order shows that
learned Special Judge has rejected the petition
basically on four grounds;
(i) There is no material on record to
show that the accused persons were
detained in police custody for more
than 24 hours;
(ii) Since the I.O. brought the accused
persons to the Court after the office
hour some more time must have been
consumed in contacting the dealing
Assistant doing paper works etc.;
(iii) The Court can grant bail only in
exercise of power under section 439 of
Cr.P.C. keeping the bar under Section
37 of the NDPS Act in mind and
(iv) the Accused persons have
committed offence of serious and grave
in nature for which releasing them on
such 'flimsy' ground of illegal detention
because of 2 to 3 hours delay will
encourage other antisocial in the
society.
20. In view of what has been discussed in detail
hereinbefore, it is more than evident that learned
Special Judge has completely misdirected himself in
delving upon irrelevant considerations ignoring thereby
the seminal issue involved. Moreover, each of the
grounds cited by him are found to be without any
basis. As has already been discussed hereinbefore,
there are enough materials on record to show that the
accused persons were detained in police custody for
more than 24 hours. Secondly, the finding of the
learned Special Judge that some time may have been
considered for doing paper works etc. is nothing but
granting undue leverage to the investigating officer
and the staff of the Court involved in the process who
are guilty of committing gross illegality. It was as if
learned Special Judge was trying to offer explanation
on behalf of the investigating/forwarding officer for the
apparent delay. Thirdly, the bar under Section 37 of
the N.D.P.S. Act could not have been invoked in a case
of illegal detention. Finally, by referring to the ground
of illegal detention as 'flimsy', learned Special Judge
has only displayed a lack of sensitivity to the
Constitutional obligation imposed upon him as a Court
of law. This Court has therefore, no hesitation in
holding that the impugned order cannot be sustained
in the eye of law.
21. Having held thus, the question that arises is
what relief the Petitioners are entitled to. Since the
detention of the Petitioners is found to be illegal, there
can be no other option than to order their release
forthwith. Reference may also be had in this regard to
the provision under Article 21 of the Constitution of
India which guarantees the fundamental right to life
and liberty. It is reiterated that the right to liberty is
one of the most cherished objects of the Constitution of
India which overrides all other considerations and
therefore, cannot be taken lightly. Therefore, the
Petitioners have to be set at liberty.
22. In the result, the CRLMC is allowed. The
impugned order is set aside. Learned Special Judge is
directed to release the Petitioners on bail forthwith on
such terms and conditions as he may deem fit and
proper to impose including the following conditions;
(i) The Petitioners shall appear before the I.I.C.
of Sahadevkhunta P.S twice a week till
conclusion of trial and such fact shall be
certified by the I.I.C. to the learned Special
Judge once in every fortnight.
(ii) They shall personally appear before the
Court below on each date of posting of the case
without seeking representation and in case of
even a single default, necessary orders shall be
passed to take them to custody.
23. Before parting with the case, this Court would
like to express its concern at the lackadaisical
approach of the Investigating Officer in dealing with
such a grave offence i.e. of illegal possession of Brown
Sugar to the tune of 1 Kg. 101 grams and whose
default in acting with promptitude and diligence
enured to the benefit of the accused persons. This is a
fit case for the higher police authorities to take serious
note of and to take all necessary steps to prevent such
gross lapses from recurring. A copy of this Judgment
be forwarded to the D.G. of Police, Odisha for doing the
needful at his end.
..................................
(Sashikanta Mishra)
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa
Date: 22-May-2023 12:34:31
