1. The present application takes exception to order dated 26.05.2026 passed by NDPS Special Court, Margao under Section 43(5) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (hereinafter referred as ‘BNSS, 2023’) in Bail Application No.55/2026, whereby respondent has been released on bail in Case No. F.No.DRI/MZU/GRU/INT/35/2026 observing breach of provision of Section 43(5) of BNSS, 2023.

2. On the basis of specific intelligence regarding a female passenger, namely, “Ms. Lallawmzuali”, who arrived at Dabolim International Airport, Goa, from New Delhi by IndiGo Flight No.6E 2028 on 24.03.2026 at about 19:00 hours, she was intercepted and thorough search of luggage was carried, which led to recovery of one soap shaped package, wrapped with black tape weighing about 323 grams. The package contained white powdery substance. On test with aid of Narcotic Drug Detection Kit, it showed positive result for Cocaine, narcotic drug covered under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘NDPS Act, 1985’). It was seized in terms of NDPS Act, 1985 under panchanama dated 24-25.03.2026. On completion of search, respondent was arrested at about 07:25 hrs. on 25.03.2026 under provisions of Section 43(b) of NDPS Act, 1985 for committing offence under Section 8(c), which is punishable under Sections 21(c), 28, 29, 35 and 54 of NDPS Act, 1985. She was then produced before Judicial Magistrate First Class at Vasco-da-Gama at about 12:30 hrs. She was remanded to Judicial Custody for 14 days. As there was apprehension of imposture, verification of true identity of accused was made. A report of verification issued by Aizawl Police Station reveals name of accused as ‘Olivia Lalchawimawii d/o S. Lalremruata’. As such, it is revealed that respondent/accused traveled using boarding pass in name of ‘Ms. Lallawmzuali’.

3. The certification of correctness of inventory, photographs and samples of seized narcotic drug was conducted before Judicial Magistrate First Class ‘C’ Court, Vasco-da-Gama on 06.04.2026. The sample was forwarded to laboratory. The sample shows presence of 6-Monoacetylmorphine. The report of second sample forwarded to Central Forensic Science Laboratory, Pune confirms substance 6-Monoacetylmorphine which is highly specific metabolite of heroin.

4. The respondent filed Bail Application No.55/2026, which came to be allowed vide impugned order subject to conditions mentioned therein. The respondent/accused filed Miscellaneous Application No.53/2026 for relaxation/modification of Condition Nos.(vi) and (viii) i.e. relaxation from furnishing local address and permission to travel to Mizoram. The Special Judge vide order dated 04.07.2026 allowed prayers for relaxation of conditions. Hence, Criminal Miscellaneous Application No.721 of 2026 is filed in present Bail Application raising challenge to order dated 04.07.2026.

5. Ms. Asha Desai, learned Advocate appearing for applicant submits that respondent was arrested for commission of offence under Section 8(c) which is punishable under Sections 21(c), 28, 29, 35 and 54 of NDPS Act, 1985. She has been granted bail, purportedly on ground that provisions of Section 43(5) of the BNSS, 2023, have been breached, as lady accused was arrested after sunset and before sunrise, but formal arrest of accused was effected only after sunrise after completion of seizure and inquiry proceedings. Information was received by Investigating Agency at about 17:55 hours, depicting possibility of transportation of contraband. After arrival of respondent/accused, detailed statutory compliance including preliminary testing, sealing, inventory, documentation and recording of statement was made till formal arrest was made at 07:25 hrs. on 25.03.2026. It is further submitted that Section 43(5) of BNSS, 2023 has no application, in case, arrest is made for offence under NDPS Act, which prescribes distinct and special procedure for seizure, arrest and detention. Referring to Section 51 of NDPS Act, 1985, it is submitted that generally provisions of Cr.P.C would apply, however, it has no application in case of arrest for offence under NDPS Act. In support of such contentions, reliance is placed on observations of Madras High Court in case of Deepa; Krishnaveni; s Anitha Vs. Vijayalakshmi; DGP and Ors.(2025 1 Crimes (HC) 385.), Kavita Manikikar of Mumbai Vs. Central Bureau of Investigation BS & FC and Ors.((2018) 3 Mh.L.J. (Crl.) 755.) and Imran Ahmed Mohammed Vs. The Union of India and Others (Bail Application No.3297/2025 decided on 06.04.2026).

6. Per contra, learned Advocate appearing for respondent/accused would submit that mandate of Section 43(5) of BNSS, 2023 would apply in all cases including offence under NDPS Act, 1985. In absence of inconsistency between provisions of BNSS, 2023 and NDPS Act, 1985, provisions of BNSS shall apply to all warrants issued and arrest under NDPS Act, 1985.

7. Having considered submissions advanced by learned Advocates appearing for respective parties, it can be observed that moot question that arises for consideration in present case is whether provisions of Section 43(5) of BNSS, 2023, are mandatory in nature and applicable even in cases of arrest of accused for offence punishable under NDPS Act, 1985.

8. Section 43 of BNSS, 2023 deals with arrest of accused by Police Officer. Sub-section (5) of Section 43 of BNSS, 2023 reads thus:

                    “43. Arrest how made.

                    (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 Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.”

9. The mandate of Sub-section (5) of Section 43 makes it clear that no woman shall be arrested after sunset and before sunrise except in exceptional circumstances for which also prior permission of Judicial Magistrate First Class is required. Similarly, arrest shall be by Lady Officer by making written report and obtaining permission from Judicial Magistrate First Class within whose jurisdiction offence is committed or arrest is to be made. Section 51 of NDPS Act, 1985 reads thus:

                    “The provisions of Code of Criminal Procedure shall apply, in so far as they are not inconsistent with provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.”

10. In the case of Deepa (supra), Division Bench of Madras High Court observed that Police Officers are bound by provisions of Act and that Police Officer, while acting in discharge of his duties, cannot frustrate legislative intent underlying protection afforded to women under sub-section (4) of Section 46 of the Cr.P.C. It was further observed that, except in unavoidable circumstances and only with prior permission of Judicial Magistrate First Class, woman can be arrested after sunset and before sunrise. Similarly, this Court in case of Smt. Sujata Vs. The State of Maharashtra (Criminal Application (BA) No.372/2025 decided on 11.07.2025) observed in paragraph no.23 as under:

                    “23. The guarantee of ‘life and liberty’ as enshrined under Article 21 of the Constitution of India available to citizen of this country cannot be denied even to an accused who is in custody and surely not to a suspect who is sought to be converted to an accused on an investigation and then from an accused to a convict on trial. It is an obligation upon the State as well as on the court to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he cannot be deprived of without following the procedure established by law. The CrPC describes the manner and to the extent of what a person can be denuded of his liberty and, therefore, needs a strict compliance. Any violation of the prescribed procedure in the matter of arrest can, therefore, liable to be declared as illegal.”

11. In case of Bharati S. Khandar Vs. Maruti Govind Jadhav, PSI and Others(2013 CrLJ 677.), Division Bench of this Court observed in paragraph no.18 as under:

                    “The Police Officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to woman by virtue of insertion of sub-section (4) to Section 46 of the Code, which in clear words prohibits the Police Officers to effect arrest except there are unavoidable circumstance. Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise. It is true that, in exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary. However, unless the procedure laid down under sub-section (4) of Section 46 of the Code is followed, no woman can be arrested at the whims and wills of the Police Officers.”

12. The aforesaid judgment is further followed by Division Bench of this Court in case of Kavita Manikikar of Mumbai Vs. Central Bureau of Investigation BS & FC and Ors.(2018 (3) Mh.L.J. (Cri.) 755.) Citation Ghene.

13. The exposition of law espoused above would show that violation of Section 43(5) of BNSS, 2023 would render arrest as illegal. The provision is mandatory subject to self contained exception.

14. In so far as contention of applicant that provision of Section 43(5) of BNSS, 2023 would not apply in case of arrest of accused for offence punishable under NDPS Act, 1985, this Court finds that language of Section 51 of NDPS Act, 1985 clarifies that provisions of Code shall apply to warrants, arrests, searches and seizures in so far as they are not inconsistent with provision of NDPS Act. It is argued on behalf of applicant that Chapter V of NDPS Act deals with procedure to issue warrant and authorisation, power of seizure and arrest in public place and power of entry, search, seizure and arrest without warrant or authorisation. It is submitted that Section 41 contemplates that any officer of gazetted rank of departments of central excise, narcotics, customs or any other department of State Government as is empowered by general or special order has reason to believe from personal knowledge or information given by any person he may arrest such person whether by day or by night. Section 42 contemplates power of arrest without warrant or authorisation and if officer has reason to believe from personal knowledge or information that any narcotic drug, or psychotropic substance etc. is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, detain and search and if he think proper, arrest any person whom he has reason to believe to have committed any offence punishable under NDPS Act.

Similarly, Section 43 provides power of seizure and arrest in public place and any officer mentioned in Section 42 can seize in any public place or in transit, narcotic drug or psychotropic substance and detain and search any person whom he has reason to believe to have committed an offence punishable under this Act and if such possession appears to him to be unlawful, arrest him. It is, therefore, submitted that any authorized officer from department mentioned in Section 42 can arrest any person who he believes to have committed offence without any restriction of time period whether by day or by night and particularly, when arrest is made at public place. By referring to language of Section 50(4) it is submitted that only restriction imposed in case of female is as regards to search by female only.

15. However, on giving thoughtful consideration to procedure prescribed under Chapter V of NDPS Act, this Court finds that so far arrest of female is concerned, no specific provision restricting/or permitting arrest at night has been incorporated. Therefore, an extra guard imposed preventing arrest of female between sunset to sunrise by introducing Section 43(5) of BNSS, 2023 would equally apply in case of arrest for offence under NDPS Act, 1985.

16. In present case, it is not in dispute that respondent/accused arrived at airport at about 07.00 pm. Thereafter, she was apprehended and put under complete control of Investigating Officer with absolute restriction on her movement and only at about 07:25 am her formal arrest was given effect.

17. The affidavit-in-rejoinder tendered by applicant suggests that on 24.03.2026 at around 19:15 hrs respondent was intercepted and subjected to verification of identity against intelligence received. Thereafter, two independent panchas and lady Gazetted Officer were summoned and after compliance of all statutory safeguards and procedural formalities, search proceedings formally commenced at about 19:50 hrs. At about 20:00 hrs check-in baggage was collected by respondent from Belt No.4, then she was escorted to Customs Office for examination of person and baggage. At about 20:31 hrs detailed examination of baggage, personal search was done in presence of Ms. Soniya Yadav, Investigating Officer, DRI and Ms. Khan Razia Khatoon, Superintendent Customs. By 22:49 hrs substance found in search was cut open and sampled. As per request of respondent, she was permitted to take rest and offered food and sample was sent for testing to DRI Office at Dona Paula. At about 02:09 hrs, result of sample from Testing Kit at DRI Office were received, which tested positive for Cocaine. At this stage, reason for arrest first arose. However, it was decided to not to arrest her, as emphasis was to get clear information on handlers from Delhi and intended delivery route in Goa, so as to trace entire network. The efforts were being undertaken to identify location or develop further leads about intended location of delivery or intended recipients on the basis of statement of respondent. However, for want of co-operation from respondent, such attempts failed. Therefore, she was placed under arrest at 07:25 hrs.

18. The aforesaid sequence of events shows that after receipt of laboratory report at about 02:09 hrs cause of action arose to arrest respondent. Even before that, primary testing of seized material was positive for contraband. The rest of investigation could have been carried by making written report and obtaining prior permission of Magistrate for arrest of respondent. There was absolutely no need to wait upto 07:25hrs. Even otherwise, respondent was in complete control of petitioner and arrest was complete. Hence, although formal arrest as contended by applicant have been done at about 07:25 hrs, what matters is deprivation of free movement and detention of person. Therefore, terminal point at which arrest can be said to have been completed may be taken as 02:10 hours, when conclusive laboratory report confirming contraband was received and respondent was kept under absolute control of movement.

19. In light of aforesaid legal and factual backdrop, impugned order declaring arrest to be illegal and consequential grant of bail need not be interfered by this Court in exercise of inherent powers or Writ jurisdiction. Since verification of respondent’s original address has been confirmed and she has 8 years old daughter, further order relaxing Condition Nos.(vi) and (viii), which were imposed while granting bail needs no interference.

20. In result, Criminal Miscellaneous Application and Criminal Application (Bail) stand dismissed.