Anawora Begam on behalf of Accused person Papi Akter vs The State of Tripura

HIGH COURT OF TRIPURA
A G A R T A L A
B.A. No.137 of 2025
Anawora Begam,
W/O Manu Miah, resident of Nabadwipchandranagar, Durgapur, P.O.
Durgapur, P.S. Sonamura, District Sepahijala Tripura.
……… Petitioner(s)
For and on behalf of accused person
Papi Akter,
W/O Suman Miah, resident of Nabadwipchandranagar, Durgapur, P.O.
Durgapur, P.S. Sonamura, District Sepahijala Tripura
……… Accused Person(s)
– V e r s u s –
The State of Tripura
Represented by the Secretary to the Government of Tripura, Home
Department, Agartala.
……..Respondent(s)

For the Petitioner(s) : Mr. Kundan Pandey, Advocate.
For the Respondent(s) : Mr. Rajib Saha, Addl. P.P.
nd
Date of hearing : 2 February, 2026.
Date of delivery of
th
Judgment & Order : 16 March, 2026.

YES NO

√
Whether fit for reporting :

HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
This bail application is filed praying for release of accused Papi
Akter on regular bail in connection with Sonamura PS case No.97 of 2025
registered under Sections 20 (b)(ii)(B)/25/29 of the NDPS Act.
[2] Prosecution case as canvassed through the FIR submitted by SI
Shubhankar Debbarma of Sonamura police station that on 24.11.2025 at
around 1900 hours (7.00 pm), he received an information from a reliable
source that the present accused, Papi Akter and her husband, Suman Miah
stored huge quantity of ganja in their house, by bringing the same by a vehicle

Page 2 of 14

bearing No.TR-07-0413 (Maruti Eeco car) which was also available in their
house at that time but said contraband item was to be shifted shortly requiring
urgent action from the side of police. It was also alleged that both the husband
and wife were jointly running the business of illicit drug trafficking.
[3] Accordingly, SI Shubhankar Debbarma along with SI Rakesh
Debnath, constable Kamal Hossain, constable Swargamohan Debbarma and
woman constable Sangita Das along with Inspector Tapas Das, OC Sonamura
police station thereafter proceeded towards that house and reached there at
around 2000 hours (8.00 pm). On search conducted in the house, they
recovered total 5.985 kg of ganja from their room and the husband of the
present accused seeing the police vehicle fled away. They seized said Maruti
Eeco vehicle. They also detained Papi Akter and returned to police station
taking her with them along with the seized item. On the following day, she was
formally shown arrested at around 1005 hours (10.05 am).
[4] Police after registration of the case conducted investigation and
finally, laid charge-sheet against said Papi Akter and her husband Suman
Miah under Sections 20 (b)(ii)(B)/25/29 of the NDPS Act showing Suman Miah
as absconder.
[5] Mr. Kundan Pandey, learned counsel for the petitioner mainly
gave stress on his argument referring to Section 46(4) of Cr.P.C.
corresponding to Section 43(5) of BNSS that the arrest was completely illegal
for violation of said provision inasmuch as it is mandate of the law that no
woman shall be arrested after sunset and before sunrise unless exceptional
circumstances exist and where such exceptional circumstances exist, the
woman police officer shall, by making a written report, obtain the prior
permission of the Magistrate of the first class within whose local jurisdiction the
offence is committed or her arrest is to be made. Referring to sub-section (1)
of Section 43, BNSS, Mr. Pandey, learned counsel also submits that a woman
is required to be arrested only by a lady police officer. Mr. Pandey, learned
counsel further contends that artificial date and time of arrest were shown in
the arrest memo by the arresting officer to save himself from the allegation of
violation of Section 43(5) of BNSS and actually when she was taken into
custody by the arresting police officer in the night which should be treated as

Page 3 of 14

time of arrest. Learned counsel also submits that the petitioner has two minor
children who are presently aged about four years and eight years who were
living alone in the house in absence of their mother and therefore, bail may be
granted to the accused person on any condition.
[6] Mr. Pandey, learned counsel in support of his contentions relies
on the following decisions:
(i) Directorate of Enforcement vs. Subhash Sharma, 2025 SCC
OnLine SC 240 wherein an LOC was issued by the Directorate of
Enforcement to the Bureau of Immigration and said Bureau of Immigration
th
detained the accused of said case at IGI Airport on 4 March, 2022 and
thereafter, physical custody of the accused was handed over by Bureau of
th
Immigration at 11.00 hours on 5 March, 2022 to the Directorate of
th
Enforcement but his arrest was shown at 1.15 hours on 6 March, 2022.
Hon’ble Supreme Court observed that the accused was not produced before
th
the nearest Magistrate within 24 hours from 11:00 am on 5 March, 2022 and
therefore, held that arrest of the accused was illegal as a result of violation of
Article 22(2) of the Constitution. In said case, time of detention was not
th
computed from 01.15 hours of 6 March, 2022 which was shown in the arrest
memo as time of arrest.
(ii) Biswajit Mandal vs. Inspector, Narcotic Control Bureau, 2025
SCC OnLine Ker 6017- In this case, the Kerala High Court observed that as
per provision of Section 43 of BNSS, an arrest is made by actually touching or
confining the body of the person to be arrested, unless there is submission to
the custody by word or action and the failure, refusal or omission to record an
arrest or continuation of an interrogation for prolonged periods without
recording arrest, shall not preclude those periods of curtailed liberty as
constituting arrest.
(iii) Dr. Sangeeta Dutta vs. State of Assam, rep. by the Special PP,
Assam and another, 2025 SCC OnLine Gau 4847- In this case, allegation of
the accused was that she was actually arrested at 1:00 am in the night of
06.05.2023 but her formal arrest was shown at 11:00 am on the following day
and such arrest was effected without obtaining prior permission of any Judicial

Page 4 of 14

Magistrate. Further grievance was also that ground of arrest was not
communicated to her or to her near relatives as required under Sections 50
and 50A of Cr.P.C. Gauhati High Court in this case on consideration of the
materials placed in said case held that Section 50 of Cr.P.C. was not complied
with by the arresting authority and therefore, violation of fundamental rights
guaranteed under Articles 21 and 22(1) gives a strong cause or reason to the
accused applicant to be enlarged on bail. The High Court also observed in this
case that Section 50A, Cr.P.C. was also violated. It was also further held that
no permission from Judicial Magistrate First Class was obtained before
effecting the arrest. The time of arrest in said case was also treated to be 1:00
am on 06.05.2023. On that score, the High Court further held that the arrest
became illegal for violation of provision of Section 46(4) of Cr.P.C. and that
violation of such statutory provision gave the accused applicant to argue for
bail as the same had violated fundamental right of life and liberty guaranteed
under Articles 21 and 22(1) of the Constitution of India.
(iv) Suvra Deb vs. State of Tripura Rep. by the Secretary to the
Department of Home, Govt. of Tripura and others, 2015 SCC OnLine Tri
1055 - In this case, the petitioner, a female was arrested after sunset and
before sunrise in violation of Section 46 of Cr.P.C. As the said provision was
violated by arresting police officer, the petitioner filed a private complaint
against her under Section 166 of the Indian Penal Code. The Magistrate
observed that the complaint cannot be proceeded without sanction of the State
Government in terms of Section 197 of Cr.P.C. and therefore, the petitioner
approached the State Government for grant of such sanction and on refusal to
grant the sanction she approached the High Court. The Division Bench of this
Court finally held that there was no error in the order refusing to grant the
sanction. The High Court further observed that one of the reasons which had
weighed to the Court while passing the aforesaid order was that the official
might not have been aware about the mandate of Section 46 sub-section (4)
but meanwhile the section was many years old and that case had also brought
the legal provisions to the notice of most people concerned and therefore, the
Registrar General was directed to send the copy of the judgment to the
Director General of Police who should ensure that it was circulated amongst all
the police officials to ensure that mandate of Section 46 is followed in letter
and spirit while making the arrest and in future, if such violation comes to the

Page 5 of 14

notice of the Court, then the Court might presume that there was knowledge of
this provision and the same was deliberately violated.
(v) Bharati S. Khandhar vs. Maruti Govind Jadhav and others,
2012 SCC OnLine Bom 1901 – Here in this case, the petitioner was arrested
after sunset and before sunrise and the Division Bench of Bombay High Court
observed that such arrest was in flagrant violation of relevant provisions and,
in particular, provisions of sub-section (4) of Section 46 of the Code and,
therefore, an appropriate action against the concerned police officials
deserved to be initiated. It was also held that the petitioner was entitled for
compensation but in that case such compensation was not granted as while
issuing the rule, the Court confined the reliefs to the extent of a particular
prayer leaving the prayer for compensation apart. But, Commissioner of
Police, Mumbai was simultaneously directed to hold an enquiry against the
concerned police officers.
(vi) Kavita Manikikar of Mumbai vs. Central Bureau of
Investigation BS & FC, through its Standing Counsel of Bombay and
Another, 2018 SCC OnLine Bom 1095 wherein allegation against the CBI
was for arresting the petitioner during night hours without complying the
provision of Section 46(4) of Cr.PC. In said case, relying on the earlier
decision of Bharati S. Khandhar (Supra) , the Division Bench of Bombay High
Court observes that the Code of Criminal Procedure which outlined the
manner and to the extent to which a person can be denuded of his liberty and
hence it needed a strict compliance. Any deviation from the prescribed
procedure in the matter of arrest can therefore, be not countenanced and is
liable to be declared as illegal.
(vii) Payal Hariom Verma vs. the State of Maharashtra and
another, Writ Petition (st) No.23969 of 2024 decided on 09.01.2025 - In this
case also allegation was of arrest of a woman accused during night time.
Initially in respect of one FIR, she was arrested and ultimately, the Judicial
Magistrate First Class released her on bail after few days of her arrest.
Another FIR with similar allegations was also lodged against her by another
person and when after complying all the formalities she came out from the jail
on 10.09.2024 in the evening, immediately she was again taken into custody

Page 6 of 14

by the police after sunset. Ultimately, considering the fact of the said case and
relying on the earlier decision of Bombay High Court in Kavita Manikikar
(Supra) , the Division Bench held that said arrest of the petitioner was illegal.
(viii) Niranjan Singh and another vs. Prabhakar Rajaram Kharote
and others, (1980) 2 SCC 559- In this case, it is held by the Hon’ble Supreme
Court that a person 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, Cr.P.C.
[7] Mr. Rajib Saha, learned Addl. P.P. argues that the raid was
conducted in the night when the husband of the present accused fled away
and she was apprehended with the contraband item. If the accused would not
be detained during that time, she would flee away and the investigation would
be seriously affected. Therefore, in such a constrained situation, the police
officer had to bring her in the police station under detention. Learned Addl.
P.P. also submits that the compliance of Section 46(4) Cr.P.C. is not
mandatory in nature and therefore, violation of the same will not render the
arrest illegal entitling the accused to be released on bail only on that ground.
Learned Addl. P.P. also relies on a decision of Division Bench of Madras High
Court in case of Deepa vs. S. Vijayalakshmi and others, 2025 SCC OnLine
Mad 934, wherein one of the points for consideration was whether compliance
of Section 46(4) of Cr.P.C. [corresponding to Section 43(5) of BNSS] is
mandatory. The Madras High Court examined and analysed the matter in
details from different view points and ultimately, held that Section 46(4) of
Cr.P.C. is directory and not mandatory. All the relevant paragraphs containing
such analysis and discussions are reproduced hereunder:
“12.Section 46(4) of Cr.P.C was considered by quite a few High
Courts. We came across quite a few decisions wherein arrests
made in breach of the procedure set out in Section 46(4) of
Cr.P.C were declared illegal. Even compensation was awarded in
some cases ((2021 2 HCC (Bom) 720 (Aleksander Kurganov v.
State of Maharashtra , 2018 SCC Online Bom 1095 (Kavitha
Manikikar of Mumbai v. Central Bureau of Investigation) , 2016
SCC OnLine Gau 783 (Tanuja Roy v. State of Assam) . Even
though we are conscious that Section 46(4) of Cr.P.C is a
beneficial provision incorporated to ensure the safety of women,
we are unable to hold that it is mandatory.
13. Section 46(4) of Cr.P.C was inserted by Act 25 of 2005 with
th
effect from 23.06.2006. The 135 report of the Law Commission

Page 7 of 14

of India on Women in Custody (1989) recommended that
ordinarily no women shall be arrested after sunset and before
sunrise and in exceptional cases calling for arrest during these
hours, prior permission of the immediate, superior officer shall
be obtained or if the case was of extreme urgency, then after
arrest report with reasons shall be made to the immediate
th
superior officer and to the Magistrate. The 154 report of the Law
Commission of India suggested incorporation of the following
provision in Section 46 of Cr.P.C:
“Save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the police officer shall, by
making a written report, obtain the prior permission of the
immediate Superior Officer for effecting such arrest, or if
the case is one of extreme urgency and such prior
permission cannot be obtained before making such arrest,
he shall, after making the arrest, forthwith report the matter
in writing to his immediate superior officer explaining the
urgency and the reasons for not taking prior permission as
aforesaid and also shall make a report to the Magistrate
within whose local jurisdiction the arrest had been made.”
In Section 46(4) of Cr.P.C / 43(5) of BNSS, 2023 the expression
“Shall” is found. It is well established that an enactment in form
mandatory might in substance be directory and that the use of
the word “shall” does not conclude the matter (Hari Vishnu
Kamath v. Ahmad Ishaque ((1954) 2 SCC 881 : AIR 1955 SC 233)).
The construction of a statutory provision as directory or
mandatory must depend on the legislative intent and context in
which it was made and not upon the language in which the intent
is clothed. The meaning and intention of the legislature are to be
ascertained by having regard to its nature, design and the
consequences which would follow from construing it in one way
or the other (vide State of Mysore v. V.K. Kangan ((1976) 2 SCC
895 : AIR 1975 SC 2190)). Merely because a provision of law is
couched in a negative language implying mandatory character,
the same is not without exceptions. The Courts when called upon
to interpret the nature of the provision, may, keeping in view the
entire context in which the provision came to be enacted, hold
the same to be directory (2005) 4 SCC 480 ( Kailash v. Nankhu ).
14.The Hon’ble Supreme Court in Sharif-ud-din v. Abdul Gani
Lone ((1980) 1 SCC 403) held as follows:
“9. The difference between a mandatory rule and a directory
rule is that while the former must be strictly observed, in the case
of the latter substantial compliance may be sufficient to achieve
the object regarding which the rule is enacted. Certain broad
propositions which can be deduced from several decisions of
courts regarding the rules of construction that should be
followed in determining whether a provision of law is directory or
mandatory may be summarised thus: The fact that the statute
uses the word “shall” while laying down a duty is not conclusive
on the question whether it is a mandatory or directory provision.
In order to find out the true character of the legislation, the court
has to ascertain the object which the provision of law in question
has to subserve and its design and the context in which it is
enacted. If the object of a law is to be defeated by non-
compliance with it, it has to be regarded as mandatory. But when
a provision of law relates to the performance of any public duty
and the invalidation of any act done in disregard of that provision

Page 8 of 14

causes serious prejudice to those for whose benefit it is enacted
and at the same time who have no control over the performance
of the duty, such provision should be treated as a directory one.
Where, however, a provision of law prescribes that a certain act
has to be done in a particular manner by a person in order to
acquire a right and it is coupled with another provision which
confers an immunity on another when such act is not done in
that manner, the former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as
mandatory if the defect in the act done in pursuance of it can be
cured by permitting appropriate rectification to be carried out at a
subsequent stage unless by according such permission to rectify
the error later on, another rule would be contravened. Whenever
a statute prescribes that a particular act is to be done in a
particular manner and also lays down that failure to comply with
the said requirement leads to a specific consequence, it would be
difficult to hold that the requirement is not mandatory and the
specified consequence should not follow.”
The Constitution Bench of the Hon’ble Supreme Court in
Dattatraya Moreshwar v. The State of Bombay , (1952) 1 SCC 372 :
AIR 1952 SC 181) held that generally speaking the provisions of a
statute creating public duties are directory and those conferring
private rights are imperative. When the provisions of a statute
relate to the performance of a public duty, and the case is such
that, to hold null and void acts done in neglect of this duty would
work serious general inconvenience or injustice to persons who
have no control over those entrusted with the duty and at the
same time would not promote the main object of the legislature,
it has been the practice of Courts to hold such provisions to be
directory.
15. Section 46(4) of Cr.P.C has not spelt out the consequence of
non-compliance with the requirement set out therein. If the
provision was intended to be mandatory, the legislature would
definitely have provided for the consequences of non-
compliance. It cannot be denied that when a Police officer effects
arrest pursuant to the power conferred on him by Cr.P.C, he is
carrying out a public duty. The matter is not between the official
effecting arrest and the arrestee. There is a third party involved,
namely, victim/defacto complainant. The victim cannot be
allowed to suffer for the neglect of duty by the Police officer.
16. There are certain practical aspects to be borne in mind. Let us
conceive of this situation: a woman commits murder after sunset
and before sunrise; the information reaches the local Police
Station; the accused is about to escape; in such a situation,
should the officer concerned prepare a written report, send it to
the local Magistrate, wait for His Honour’s permission and upon
receipt thereof, proceed to arrest the accused? We have no
doubt in our minds that the horse would have bolted by then.
Mechanical adherence to procedures can injure public interest at
times. That is why, when the Nagpur Bench of the High Court of
Bombay directed the State Government to issue instructions to
all police officials that no female persons shall be detained or
arrested without the presence of the lady constable and in no
case after sunset and before sunrise, the Hon’ble Supreme Court
in State of Maharashtra v. Christian Community Welfare Council
of India (2003) 8 SCC 546 observed that while they agreed with
the object behind the direction, a strict compliance with the said
direction in a given circumstance would cause practical

Page 9 of 14

difficulties to the investigating agency and even might give room
for evading the process of law by unscrupulous accused.
17. The statutory provision envisages that the woman police
officer should make a written report and obtain the prior
permission of the Magistrate before making arrest. One can very
easily imagine situations when the investigating officer is left
with very little time to respond. Suppose a heinous offence takes
place at midnight. The jurisdictional Magistrate may not be
available or accessible. Digital solutions may not also work. The
Magistrate may be fast asleep. The written report sent by mail
would be lying in his inbox. The accused will not be waiting for
the Police officer to obtain permission from the Magistrate.
18.It was observed in D. Venkatasubramaniam v. M.K. Mohan
Krishnamachari reported in (2009) 10 SCC 488 that it is the
statutory obligation and duty of the Police to investigate into the
crime and the Courts normally ought not to interfere and guide
the investigating agency as to in what manner the investigation
has to proceed. In Abhinandan Jha v. Dinesh Mishra AIR 1968
117 it was observed that the manner and method of conducting
investigation are left entirely to the police and the Magistrate has
no power to interfere with the same. The Privy Council in Nazir
Ahamed case, (1943-44) 71 IA 273 observed that the judiciary
should not interfere with the police in matters which are within
their province. The functions of the judiciary and the police are
complementary and not overlapping. Investigation includes the
discovery and arrest of the suspected offender. We are therefore
of the view that it would not be in the interest of maintaining law
and order if a Police officer is expected to write to the local
Magistrate and effect arrest only after obtaining his/her prior
permission. Such a stringent condition would disable Police
officers from effectively discharging their public duties.
19. Though we have held that Section 46(4) of Cr.P.C/43(5) of
BNSS is directory and not mandatory, the provision cannot be
rendered otiose by the Police. There is a laudable reason for
incorporating such a provision. It is meant to serve as a note of
caution to the officers effecting arrest of women. While failure to
adhere to the statutory requirement may not lead to the arrest
being declared illegal, the officer concerned may have to offer
explanation for inability to comply with the procedure.”
Mr. Saha, learned Addl. P.P., therefore, prays for rejection of the
bail application.
[8] Apart from the decisions as cited by the parties, two other
decisions of Delhi High Court and Rajasthan High Court on this point also
require mention.
[9] Delhi High Court in the case of Rakesh Chand vs. State of NCT
of Delhi, 2015 SCC OnLine Del 14193 on that point observes that normally,
arrest of a woman is not to be effected after sunset and before sunrise except
under exceptional circumstances. Even in those exceptional circumstances, if

Page 10 of 14

a woman is required to be arrested between sunset and sunrise, a written
permission is required to be obtained from the Judicial Magistrate of the first
class within whose local jurisdiction the offence is committed or the arrest is to
be made. According to Delhi High Court, though there is a statutory
requirement of obtaining written permission from a Judicial Magistrate in case
a woman is to be arrested during night time but it cannot be said that under no
circumstance can such requirement be waived. The exigencies of such
situation had to be taken into account.
[10] Rajasthan High Court in case of Smt. Sadhna Upmanyu vs.
Station House Officer ACB and others, 2016 SCC OnLine Raj 6502 also
observed the followings:
“8. ............................................................................................
Although, sub-section (4) of Section 46 Cr.P.C. provides
that no woman shall be arrested after sun set and before
sun rise except in exceptional circumstances and where
the police officer effecting arrest after sun set and
before sun rise claims existence of some exceptional
circumstances, he must obtain the prior permission of
the Judicial Magistrate or Special Court within whose
local jurisdiction the offence has been committed or the
arrest is to be made but it cannot be said that under no
circumstances can such requirement be waived. The
exigencies of the situation have to be taken into account
before it is held that arrest of the woman has been made
in contravention of this provision. In a case it may
happen that offence itself is committed after sun set and
before sun rise and after undertaking some preliminary
investigation involvement of a woman is found in the
offence and her immediate arrest is required to be made
and practically it is not possible to obtain the prior
permission of the concerned Magistrate, in my opinion
in such a situation the arrest of the woman accused
cannot be said to be in contravention of the requirement
of this provision and it does not amount violation of
fundamental right conferred upon such woman under
Article 21 of the Constitution of India. It is well settled
legal position that personal liberty of a person can be
curbed by procedure established by law and Code of
Criminal Procedure is one of such procedural law.”
[11] Before said provision of Section 46(4) of Cr.P.C. was introduced in
Code of Criminal Procedure vide Act No.25 of 2005 w.e.f. 23.06.2006, the
Division Bench of Bombay High Court in a case between Christian
Community Welfare Council of India and another vs. Government of
Maharashtra and another, 1995 CRI.L.J. 4223 issued certain directions to

Page 11 of 14

the State Government for compliance and one of the said direction was that
the State Government should issue instructions immediately in unequivocal
and unambiguous terms to all concerned that no female person shall be
detained or arrested without the presence of lady constable and in no case,
after sun-set and before sun-rise. When the said matter was challenged before
the Hon’ble Supreme Court in case of State of Maharashtra vs. Christian
Community Welfare Council of India and another, (2003) 8 SCC 546 , the
Hon’ble Supreme Court held as under:
“9. Herein we notice that the mandate issued by the High
Court prevents the police from arresting a lady without the
presence of a lady constable. The said direction also prohibits
the arrest of a lady after sunset and before sunrise under any
circumstances. While we do agree with the object behind the
direction issued by the High Court in sub-para (vii) of the
operative part of its judgment, we think a strict compliance
with the said direction, in a given circumstance, would cause
practical difficulties to the investigating agency and might
even give room for evading the process of law by
unscrupulous accused. While it is necessary to protect the
female sought to be arrested by the police from police
misdeeds, it may not be always possible and practical to have
the presence of a lady constable when the necessity for such
arrest arises, therefore, we think this direction issued requires
some modification without disturbing the object behind the
same. We think the object will be served if a direction is
issued to the arresting authority that while arresting a female
person, all efforts should be made to keep a lady constable
present but in the circumstances where the arresting officers
are reasonably satisfied that such presence of a lady
constable is not available or possible and/or the delay in
arresting caused by securing the presence of a lady constable
would impede the course of investigation, such arresting
officer for reasons to be recorded either before the arrest or
immediately after the arrest be permitted to arrest a female
person for lawful reasons at any time of the day or night
depending on the circumstances of the case even without the
presence of a lady constable. We also direct that with the
above modification in regard to the direction issued by the
High Court in sub-para (vii) of this appeal, this appeal is
disposed of.”
[12] Taking note of all the above said decisions, it appears that there
are divergent views of the High Courts in this regard and Madras High Court,
Delhi High Court and Rajasthan High Court are of the view that in every case,
strict compliance of Section 46(4) of Cr.P.C. may not be feasible. Hon’ble
Supreme Court in above said decision of State of Maharashtra vs. Christian
Community Welfare Council of India and another (Supra) , has also taken
the note of the fact that on every occasion it may not be practicable for strict

Page 12 of 14

compliance of the direction of the Bombay High Court regarding arrest of
female as indicated above and same may even give a scope to the
unscrupulous accused person for evading the process of law. No doubt,
Section 46(4) of Cr.P.C. [corresponding to Section 43(5) of BNSS] has been
introduced by the law makers with the solemn object to protect the women
from undue police harassment and to give a safeguard to their dignity, but,
there may be some cases or situations where adherence to strict compliance
to said provision may not be appropriate and practicable for the interest of the
investigation. Therefore, the contention of Mr. Pandey, learned counsel that for
non-compliance of Section 46(4) of Cr.P.C. [corresponding to Section 43 (5) of
BNSS], the accused person will accrue an indefeasible right to be released on
bail on that ground in every case, cannot be accepted.
[13] In the present case, it is mentioned in the FIR that on 24.11.2025
at 1900 hours (7.00 pm), a secret information was received by SI Shubhankar
Debbarma that the present accused and her husband were engaged in illegal
business of drug trafficking and ganja was brought to their house by a vehicle.
They were available in their house and such contraband items were likely to
be shifted shortly. According to said FIR, at around 1930 hours (07.30 pm),
they formed a team lead by Inspector Tapas Das, OC of Sonamura police
station and proceeded for said Matinagar area and at 2000 hours (8.00 pm),
they arrived at Matinagar area in the house of the accused persons which is
situated at a distance of 12 km from Sonamura police station.
[14] There is no explanation whether after receipt of such secret
information they made any correspondence with the concerned area
Magistrate or with the Chief Judicial Magistrate, Sepahijala, Sonamura for
obtaining any permission for arrest of accused Papi Akter when already they
had the information with them that the said accused with her husband were
present in the house with those contraband ganja. Furthermore, when at
around 2000 hours (8.00 pm) or immediately thereafter they detained said
Papi Akter but her arrest has been shown on the following day i.e. 25.11.2025
at around 1005 hours which indicates that for the whole night she was kept
detained in the police station without any arrest. No explanation is found in the
record as to why her arrest was shown on the following day in the morning
when in the previous night she was detained by the police. This Court is not

Page 13 of 14

forming any opinion regarding deliberate violation of Section 46(4) of Cr.P.C.
by the arresting police officer as he is not a party in the proceeding and he has
not been given a scope to be heard. However, the matter is required to be
enquired.
[15] It is also true that the case is concerning intermediate quantity of
ganja and for a considerable period, the accused-petitioner was in custody.
Investigation is also complete and charge-sheet is already laid by the
investigation officer. There is also no prayer for custody trial of the accused-
petitioner.
[16] Considering all these aspects, bail prayer of the petitioner is
allowed. Petitioner Papi Akter may go on bail on submission of a fresh bail
bond of Rs.1,00,000/- with one surety of like amount to the satisfaction of
learned Special Judge, Sonamura with conditions that-
(i) the surety must be a permanent resident of Tripura;
(ii) the accused-petitioner will not leave the State of Tripura without
prior permission of the learned Special Judge and such permission can be
accorded only on any special ground of urgent nature;
(iii) she will not try to terrorize or influence any witness of the case,
and;
(iv) she will regularly appear before the Court to face the trial;
(v) she will give her attendance once in a week in the Court of
learned Special Judge, Sonamura till the trial is complete unless same is
relaxed or dispensed with by learned Special Judge.
The Director General of Police will get the allegation of violation of
Section 43(5) of BNSS enquired through a police officer not below the rank of
Superintendent of Police and in case of deliberate violation of the same
without justifiable cause; necessary departmental action will be taken against
the erring official.

Page 14 of 14

With such observation and direction, the bail application is
disposed of.
Copy of this order be communicated to the Director General of
Police.
Return the case diary to learned Addl. P.P.
Communicate a copy of this order immediately to learned Trial
Court.
Pending application(s), if any, shall also stand disposed of.
JUDGE













Rudradeep RUDRADEEP BANERJEE
Digitally signed by RUDRADEEP BANERJEE
Date: 2026.03.16 16:30:56 +05'30'