Aryaman Pattnayak vs Union Of India ... Opposite Party
2026 Latest Caselaw 1121 Ori

Orissa High Court

Aryaman Pattnayak vs Union Of India ... Opposite Party on 9 February, 2026

Author: G. Satapathy

Bench: G. Satapathy

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                     BLAPL No. 10495 of 2025

   (In the matter of application under Section 439 of CrPC
   r/w. Sec. 483 of the BNSS, 2023).

   Aryaman Pattnayak                 ...                   Petitioner
                                   -versus-
   Union of India                    ...             Opposite Party

   For Petitioner              :    Mr. D.P. Dhal, Sr. Advocate along
                                      with Ms. S. Pattnaik, Advocate

   For Opposite Party          :    Mr. P.K. Parhi, DSGI along with
                                           Mr. J. Panda, CGC
              CORAM:JUSTICE G. SATAPATHY

DATE OF HEARING & DATE OF JUDGMENT:09.02.2025 (ORAL)


G. Satapathy, J.

1. This is an application U/S.483 of BNSS by

the petitioner for grant of bail in connection with NCB,

Bhubaneswar Crime No. 04 of 2025 corresponding to

Special T.R Case No.378 of 2025 pending in the file of

learned District & Sessions Judge, Bhubaneswar for

commission of offences punishable U/Ss. 8(c) read

with Sec. 21(c)/23/25/29 of NDPS Act.

2. The factual matrix as unfurled is that

acting on a specific information received from the

Office of Narcotic Control Bureau, Delhi Zonal Unit

regarding the petitioner possessing Narcotic Drugs and

Psychotropic Substance in his dwelling house at Block-

B-1, Flat No. 105, New Jeevan Bima Nagar, Maitri

Vihar, Bhubaneswar on 22.07.2025, the information

was reduced into writing and submitted to superior

officer and the authority concerned by procuring two

independent witnesses from the locality i.e. from the

apartment area of the petitioner reached to the

specific flat of the petitioner at around 1.30PM in the

afternoon on the same day i.e. 22.07.2025 and after

observing necessary procedure, conducted search in

the said house of the petitioner and recovered 06 blots

of Lysergide (in short, "LSD"), 08 number of blank

blots having written LSD 25 250ugl wrapped in silver

foil and hidden in a book and 05 numbers of black

colour nozzle spray containing liquid LSD kept in a

black-colour box. Accordingly, the aforesaid items

were seized by the NCB officials and the 06 blots of

LDS were on being weighed came to be

0.110gm(110mg), the 08 blank blots on being

weighed came to 0.140gm. (140mg) and lastly, the

liquid LSD(spray) on being weighed came to

23.360gram. The search, seizure and recovery was

completed at 16.50hours (4.50PM) on the same day,

but subsequently, the petitioner was shown to be

arrested at 23.30hours (11.30PM) at NCB Office,

Bhubaneswsar which is found from the memorandum

of arrest for commission of offence punishable U/Ss.

21(c)/23/25/29 of NDPS Act in violation of Sec. 8(c) of

the NDPS Act. The petitioner was accordingly produced

before the Special Court on the next day and his bail

application having been rejected by the learned

Special Judge-cum-Sessions Judge, Khurda, the

petitioner is before this Court in this bail application.

3. It needs to be stated here that the

petitioner has also approached the learned Special

Sessions Judge-cum-Special Judge, Khurda at

Bhubaneswar for releasing him from the judicial

custody forthwith for illegal detention in custody being

produced before the Special Court beyond 24hours in

violation of the provision of Article 22(2) of the

Constitution of India read with Sec. 58 of BNSS

(Section 57 of CrPC), but the same having been

rejected, the petitioner has preferred Criminal Revision

No. 1010 of 2025 which was disposed of by a co-

ordinate Bench of this Court on 22.12.2025 dismissing

the revision by holding no infraction of Article 22(2) of

the Constitution of India r/w Section 57 of CrPC. The

petitioner is, however, again testing the same legal

point in this bail application together with grant of bail

to him on merit.

4. In the course of hearing, Mr. Debi Prasad

Dhal, learned Senior Counsel who is being assisted by

Ms. Shreya Patnaik, learned counsel for the petitioner

submits that there is clear cut infraction of the

statutory and mandatory provision of law and the

petitioner is thereby entitled to be released on bail for

non-compliance of the provision of Section 58 of BNSS

read with Article 22(2) of Constitution of India. Mr.

Dhal submits that since the petitioner's house was

raided at 1.30 PM in the afternoon, the custody of the

petitioner would start on & from 1.30 PM itself as the

petitioner's movement was curtailed from that time

and for all purpose, the petitioner was deemed to be in

custody since 1.30 PM on 22.07.2025, but the NCB

official has shown his arrest at 11.30 PM on the same

day and produced him in the concerned Court on the

next day in between 5 PM to 5.30 PM and, therefore,

the statutory period of 24 hours having already been

elapsed, not only the first remand of the petitioner is

illegal, but also his subsequent remand in custody and,

thereby, the illegal detention cannot mature into legal

detention in terms of the law and the petitioner is,

therefore, entitled to bail on that score itself. Further,

Mr. Dhal by highlighting the other materials placed on

record submits that since the Contraband article was

allegedly recovered from the dwelling house, but not

from the exclusive possession of the petitioner, he is

also entitled to bail on that score inasmuch as the

petitioner being not in conscious possession of

Contraband article, the statutory embargo as placed

U/S.37 of NDPS Act considered to have been satisfied

by the petitioner and he having detained in custody for

a substantial period may kindly be granted bail.

4.1. In opposing the prayer for bail of the

petitioner, Mr. Prasanna Kumar Parhi, learned DSGI

for Odisha appearing along with Mr. J. Panda, learned

CGC submits by highlighting the provision of Section

42 of NDPS Act that since the search and seizure are

preceded by arrest of the petitioner, it cannot be said

that mere entry in the house of the petitioner would

curtail his liberty and, thereby, he is considered not to

be in custody since then because once the NCB official

finds the petitioner to have committed the offence,

then he can be taken into custody and such detention

in this case is on and from 11.30 PM and, thereby, the

production of an accused before the concerned Court

being within the statutory period of 24 hours, the

petitioner is not entitled to bail on that score since

there is no infraction of the provision of Section 58 of

BNSS read with Section Article 22(2) of the

Constitution of India. The learned DSGI also submits

that since the petitioner was allegedly found in

conscious possession of commercial quantity of

Contraband article and he having not satisfied the

conditions of Section 37 of NDPS Act, the bail

application of the petitioner may kindly be rejected.

5. Admittedly, the petitioner being

aggrieved by the order passed by the learned Special

Judge has approached this Court in CRLREV No.1010

of 2025 claiming violation of the statutory and

mandatory provisions of Section 58 of BNSS read with

Section Article 22(2) of the Constitution of India, but a

co-ordinate Bench of this Court after making a

threadbare analysis of facts has concluded that there

was in fact no infraction of the provision of Section 58

of BNSS read with Section Article 22(2) of the

Constitution of India, but this Court does not sit in an

appeal against such order passed by a co-ordinate

Bench of this Court. The petitioner, however, has

supplied the copy of such order passed by a co-

ordinate Bench of this Court for perusal and this Court

on perusal of such judgment passed by a co-ordinate

Bench humbly concurs with the view of the co-ordinate

Bench of this Court. For arguendo, examining the plea

as advanced for the petitioner, that arrest begins

when custody becomes accusatory, it is to be noted

that arrest has not defined either in BNSS or any other

statue, however, "arrest how made" has been

provided in Section 43(1) of BNSS (Section 46 of

CrPC) and it is stated therein that 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. It is, therefore, plain and

simple that if the Officer arresting the person touches

or confines the later(person), it can be said that the

said person is arrested and such person can also be

said to have been arrested, if he submits to the

custody of the Arresting Officer by word or action. It is

further needs to be clarified here that "custody" and

"arrest" are not synonymous, but in every arrest,

there must be custody, but not vice versa inasmuch as

a person in custody may not be under arrest as

accused person surrendering in the Court on

accusation of committing offence is also taken into

custody without formal arrest. One thing is very clear

that during custody in a criminal matter, the person is

considered to be in duress. It is, however, apparently

clear that if the person is either arrested or confined in

custody of a law enforcing agency, he is under duress.

Indisputably, protection of life and personal liberty of a

person is his fundamental right and Article 22 of the

Constitution of India provides protection against illegal

arrest and detention in certain cases and, therefore,

the provision of Sec. 58 of BNSS (Sec. 57 of CrPC)

flows from the provision of Article 22(2) of the

Constitution of India which makes it mandatory that

every person who is arrested and detained in

custody shall be produced before the nearest

Magistrate within a period of twenty-four(24)

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.

6. Once a person is taken into custody by the

police on the accusation of committing an offence, the

arrest of the person is automatically presumed and if

such custody of the said person by the Police Official

continues, it shall be mandatory for such Police Official

keeping the person in custody to produce him before

nearest Magistrate within a period of 24 hours

excluding the time necessary for the journey. The

present case, however, demonstrates a case of search

of dwelling house for commission of offence under

NDPS Act, but what is important in this case is that

there is specific provision either U/S.42 or 43 of NDPS

Act for the power of entry, search, seizure and arrest

without warrant or authorization. Since the house in

question was searched in this case, the provision of

Section 42 of NDPS Act is quoted hereunder:-

"42. Power of entry, search, seizure and arrest without warrant or authorization:-

(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 intelligence 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."

7. A careful reading of the aforesaid provision of

Sec.42 of the NDPS Act makes it apparent clear that

the authority concerned between sunrise and sunset

may enter into and search any such building,

conveyance or place and do all other allied acts which

are provided in Sec. 42 of the NDPS Act, however,

unless the empowered Officer has reason to believe

any person to have committed any offence punishable

under NDPS Act, he cannot arrest such person in a

routine manner, but he can detain such person for

search as per Sec. 42(d) of the NDPS Act. According to

Sec. 42 of the NDPS Act, which is applicable to the

case at hand, search and seizure precede arrest and,

therefore, search and seizure of the premises/building

by the empowered officer is permissible on receipt of

credible information or knowledge as referred to in the

section, but arrest of the person so detained for the

aforesaid purpose of search and seizure of the

premises is only permissible after the empowered

officer thinks proper or for reason to believe the

person to have committed any offence under the NDPs

Act. The crux, therefore, is unless the authority has

reason to believe such person to have committed any

offence, he cannot formally arrest the said person, but

he can detain and search the said person. In this case

at hand, it is undisputed that the NCB official has

reached to the apartment of the petitioner at 1.30PM

and thereafter, conducted raid in the apartment of the

petitioner, but such raid was completed at 4.50PM and

thereafter, the petitioner was taken into NCB office. It

is, therefore, can be considered that the petitioner was

taken into custody on 22.07.2025 at 4.50PM, but

according to the petitioner, he was produced before

the Court on 23.07.2025 in between 5PM to 5.30PM.

The statutory period of 24hours is exclusive of the

time necessary for the journey from the place of arrest

to the Court of the Magistrate. It is, therefore, can be

well considered that the time required for journey

would be more than 10 minutes from the place of

arrest to the Court since the arrest was effected at

Maitirivihar, Bhubaneswar city at some apartment and

the Court is situated in Kalpana Square. No doubt, the

formal arrest of the petitioner was shown to be at

11.30PM in the night, but for the purpose of

calculating 24 hours, the custody and arrest of the

petitioner can be considered on and from 4.50PM for

all practical purpose. In the sequence of events and

provision of law as exposited, mere entry into a

dwelling house/building by the empowered officer for

the purpose of search and seizure in presence of such

person in occupation of said dwelling house/building

by no stretch of imagination the said person can be

considered to be under custody of law enforcing

agency as arrest. Further, the materials placed on

record does not disclose about the NCB official using

any force against the petitioner who is stated to have

cooperated the search and seizure of the apartment.

The aforesaid reasons persuade this Court only to

humbly agree with the observation of the co-ordinate

Bench, but also not to take any different view. In the

aforesaid facts and circumstance, this Court hardly

finds any infraction of Sec.58 of BNSS read with

Sec.22(2) of the Constitution of India in producing the

petitioner before the concerned Court.

8. On coming to the next issue as to whether

the petitioner has satisfied the conditions of Sec. 37 of

NDPS Act, since the petitioner was allegedly found in

possession of commercial quantity of LSD. The case

demonstrates that NCB official conducted raid in the

house of the petitioner on getting specific information

against him for possessing Contraband article in his

house and the NCB Official allegedly recovered

commercial quantity of LSD along with other

incriminating articles from the apartment (dwelling

house) of the petitioner and, thereby, the petitioner

has to satisfy the conditions of Sec. 37 of NDPS Act,

which is sine qua non for grant of bail to an accused

for commission of offence under NDPS Act involving

commercial quantity. On a careful conspectus of

materials placed on record and keeping in view the

provision of Sec. 37 of NDPS Act, it is not in dispute

that the learned Public Prosecutor, who is the learned

DSGI and CGC in this case oppose the prayer of the

petitioner for bail, but on a conspectus of materials

placed on record, the petitioner is hardly found to

have satisfied the conditions of Sec. 37 of NDPS Act.

In such situation, the bail application of the petitioner

merits no consideration.

In the result, the present bail application

stands rejected. Accordingly, the BLAPL stands

disposed of. A soft copy of this order be immediately

transmitted to the concerned Court.

(G. Satapathy) Judge

Signed by: KISHORE KUMAR SAHOO

Location: High Court of Orissa Date: 11-Feb-2026 17:18:46 Orissa High Court, Cuttack, Dated the 9th day of February, 2026/Kishore