Procedural irregularities or non-compliance with arrest protocols do not override Section 37 NDPS Act for commercial quantity bail.

In brief

The question

1. Whether the alleged procedural violations under Section 42 (search and seizure) and Section 50 (personal search) of the NDPS Act entitle the accused to bail at this stage.

The court held

The Court rejected both bail applications, holding that the twin conditions of Section 37 of the NDPS Act were not satisfied given the recovery of commercial quantities and the presence of incriminating evidence in the Case Diary

It also directed

Procedural doubts regarding the location and time of arrest are matters for trial. However, the Court directed the SP, Sepahijala, to conduct an inquiry into the potential deliberate violation of Section 43(5) of the BNSS regarding the nighttime arrest of Mariam Bibi and to initiate departmental action if necessary

01Facts

On February 6, 2026, police raided the house of Ali Hossen in Sonamura based on secret information, recovering a commercial quantity of Yaba tablets, illegal arms, ammunition, and foreign currency

¶ 4

Mariam Bibi (Hossen’s wife) and Anowar Hossain (alleged financier) were arrested under Sections 22(c)/25/27A/29 of the NDPS Act, Section 25(1B)(a) of the Arms Act, and Section 61 of the BNS, 2023

¶ 3

The petitioners sought bail, alleging false implication and procedural violations, specifically that Mariam Bibi was arrested during the night in violation of Section 43(5) of the BNSS and that Section 50 of the NDPS Act (personal search) was not complied with

¶ 5, 6, 9

02Issues

i.1. Whether the alleged procedural violations under Section 42 (search and seizure) and Section 50 (personal search) of the NDPS Act entitle the accused to bail at this stage.

¶ 11, 16, 18

ii.2. Whether the arrest of a female accused during the night, allegedly in violation of Section 43(5) of the BNSS, 2023, creates an indefeasible right to bail.

¶ 17, 29

iii.3. Whether the restrictions under Section 37 of the NDPS Act are satisfied for the grant of bail involving commercial quantities.

¶ 20, 21, 33

03Law Applied

The court primarily applied Section 37 of the NDPS Act, which mandates twin conditions for bail: a reasonable ground to believe the accused is not guilty and is unlikely to commit an offence while on bail

¶ 20, 33

It relied on Vijaysinh Chandubha Jadeja v. State of Gujarat, establishing that Section 50 compliance is a matter for trial

¶ 24

Regarding nighttime arrest of women, the court cited Anawora Begam v. State of Tripura, holding that Section 43(5) of the BNSS (formerly Section 46(4) CrPC) does not grant an automatic right to bail regardless of the gravity of the offence

¶ 17

It further referenced State of Tripura v. Mahabul Alam, affirming that procedural irregularities should generally be considered during trial rather than at the bail stage

¶ 20

Provisions in the judgment · 13 · Linked ones open on LawLens

Narcotic Drugs and Psychotropic Substances Act, 1985 9 provisions

Section 22 Section 25 Section 29 Section 37 Section 41 Section 42 Section 50 Section 52 Section 90

Arms Act, 1959 Section 25

Bharatiya Nyaya Sanhita, 2023 Section 61

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 43

Code of Criminal Procedure, 1973 Section 46

04Reasoning

The Court observed that while the search occurred at night, the G.D. entries confirmed that secret information was properly communicated to higher authorities, satisfying the spirit of the law at the prima facie stage

¶ 26

Regarding Section 50 of the NDPS Act, the court found it inapplicable because the contraband was recovered from the house (premises search) and not from the person of the accused

¶ 27

On the issue of Section 43(5) BNSS, the court noted that while the dignity of women is paramount, procedural lapses do not override the statutory bars of Section 37 NDPS in cases of commercial quantities

¶ 21, 29

The Court reviewed the Case Diary, which contained statements from independent witnesses naming Anowar Hossain as a financier and Mariam Bibi as a collaborator

¶ 27, 33

Discrepancies in the arrest memos were noted as administrative concerns but were insufficient to rebut the "substantial probable causes" of guilt required for bail

¶ 32, 33