Effective detention under the NDPS Act constitutes arrest for applying BNSS’s prohibition on women’s sunset arrests.

On 22.07.2026, acting on source information, police intercepted a red Maruti Bolero allegedly transporting narcotic drugs concealed in soap cases.

The search resulted in the recovery of 29 soap cases containing brown powder suspected to be heroin, weighing 434.38 grams, along with the vehicle and two mobile phones.

The petitioner was subsequently formally arrested and the case was registered under Sections 21(c), 25, 27A and 29(1) of the NDPS Act.

She sought bail under Section 483 of the BNSS, contending that, as a woman, she had been arrested after sunset without prior permission of the Magistrate, contrary to Section 43(5) of the BNSS.

The seizure was recorded at 6:05 p.m. on 22.07.2026, while sunset occurred at approximately 6:06 p.m.

Whether the petitioner’s arrest should be treated as having occurred when she was first detained by the police, rather than when her formal arrest memorandum was prepared, for determining compliance with Section 43(5) of the BNSS.

Whether the petitioner was arrested after sunset without the prior permission of a Judicial Magistrate, thereby rendering the arrest illegal and justifying the grant of bail.

Whether the alleged recovery of commercial-quantity contraband attracted the restriction on bail under Section 37 of the NDPS Act.

Section 43(5) of the BNSS provides that, save in exceptional circumstances, no woman shall be arrested between sunset and sunrise, and that prior permission of the Judicial Magistrate First Class is required in such exceptional circumstances.

The Court applied Section 42(1)(d) of the NDPS Act, which authorises an empowered officer to detain and search a person and, where appropriate, formally arrest that person.

Relying on Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, the Court held that custody begins when a person is under the physical control of an authority exercising coercive power, irrespective of the use of a formal arrest memorandum.

It also relied on Directorate of Enforcement v. Subhash Sharma, 2025 SCC OnLine SC 240, and Dr. Sangeeta Dutta v. State of Assam, 2025 SCC OnLine Gau 4847, for treating effective detention as the relevant point of arrest for constitutional and statutory safeguards.

Section 37 of the NDPS Act imposes stringent conditions for bail where the alleged offence involves commercial-quantity contraband.

The Court held that, under Section 42(1)(d) of the NDPS Act, detention precedes formal arrest and that the relevant time for determining whether a woman was arrested after sunset is the time when her freedom of movement was effectively curtailed.

Since the seizure was recorded at 6:05 p.m., the petitioner necessarily had been detained before that time, as the search and seizure followed her detention.

As sunset occurred at approximately 6:06 p.m., the Court treated the petitioner’s arrest as having occurred before sunset, notwithstanding the later formal arrest shown in the records.

Accordingly, Section 43(5) of the BNSS was not attracted and the alleged absence of prior Magistrate’s permission did not render the arrest illegal.

Independently, the recovery of 434.38 grams of suspected heroin was prima facie a commercial-quantity recovery from the petitioner’s conscious possession, attracting the statutory bar under Section 37 of the NDPS Act.

Consequently, prior Magistrate’s permission under Section 43(5) of the BNSS was not required, and the arrest was not rendered illegal.

In view of the prima facie recovery of commercial-quantity contraband and the applicability of Section 37 of the NDPS Act, the Court rejected the bail application and dismissed the petition.