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 BLAPL No. 10495 of 2025 Page 1 of 16 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 BLAPL No. 10495 of 2025 Page 2 of 16 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 BLAPL No. 10495 of 2025 Page 3 of 16 (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 BLAPL No. 10495 of 2025 Page 4 of 16 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. BLAPL No. 10495 of 2025 Page 5 of 16 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 BLAPL No. 10495 of 2025 Page 6 of 16 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 BLAPL No. 10495 of 2025 Page 7 of 16 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 BLAPL No. 10495 of 2025 Page 8 of 16 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 BLAPL No. 10495 of 2025 Page 9 of 16 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 BLAPL No. 10495 of 2025 Page 10 of 16 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 BLAPL No. 10495 of 2025 Page 11 of 16 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 BLAPL No. 10495 of 2025 Page 12 of 16 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 BLAPL No. 10495 of 2025 Page 13 of 16 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. BLAPL No. 10495 of 2025 Page 14 of 16 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 BLAPL No. 10495 of 2025 Page 15 of 16 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 Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 11-Feb-2026 17:18:46 Orissa High Court, Cuttack, Dated the 9th day of February, 2026/Kishore BLAPL No. 10495 of 2025 Page 16 of 16