ADVERTISEMENT
Karnataka High Court
Sri Eman Abbas Topiwala vs The State Of Karnataka on 10 April, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 23.03.2026
R
Pronounced on : 10.04.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3020 OF 2026
BETWEEN:
SRI EMAN ABBAS TOPIWALA
AGED ABOUT 28 YEARS
S/O MOHAMMED ABBAS HUSEIN AKI TOPIWALA
R/A: 207, 2ND FLOOR
GITANJALI LAKE VIEW APARTMENT
BENIGANAHALLI, KRISHNARAJAPURAM R S
BENGALURU - 560 016.
... PETITIONER
(BY SRI ABHIMANYU DEVAIAH, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY DEVANAHALLI POLICE STATION
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA.
... RESPONDENT
(BY SRI B.N.JAGADEESHA, ADDL.SPP )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,/ SECTION 528 OF THE BNSS, 2023 PRAYING TO QUASH
THE FIR, COMPLIANT, CHARGE SHEET AND ENTIRETY OF
2
PROCEEDINGS IN SPL.C.NO.1182/2025 FOR OFFENCES P/U/S
20(b), 22(a), 27(B), 25 OF NDPS ACT, 1985 AND SEC.292, 296,
3(5), 111(2) OF BNS, 2023 PENDING BEFORE THE COURT OF THE
VIII ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE
FOR NDPS CASES AT BENGALURU RURAL DISTRICT, BENGLAURU
IN SO FAR AS THE PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.03.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.12 in Special Case No.1182 of
2025 is before the Court seeking the following prayer:
"a. Call for the records in the Special Case No.1182 of 2025
for offences punishable under Section 20(b), 22(a), 27(B)
of the Narcotic Drugs and Psychotropic Substances Act,
1985 and 292, 296 3(5) and 111(2) of the Bharatiya
Nyaya Sanhita, 2023 pending before the Court of the VIII
Additional District and Sessions Judge and Special Judge
for NDPS Cases at Bengaluru Rural District, Bengaluru.
b. Quash the FIR, complaint, charge sheet and entirety of
proceedings in Special Case No.1182/2025 for offences
punishable under Section 20(b), 22(a), 27(B) 25 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
and 292, 296, 3(5) and 111(2) of the Bharatiya Nyaya
Sanhita, 2023 pending before the Court of the VIII
Additional District and Sessions Judge and Special Judge
for NDPS Cases at Bengaluru Rural District, Bengaluru
insofar as the petitioners are concerned.
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c. Grant such other relief/s as this Hon'ble Court deems fit
to grant in facts and circumstances of the case."
2. Heard Sri Abhimanyu Devaiah, learned counsel appearing
for the petitioner and Sri B.N. Jagadeesha, learned Additional State
Public Prosecutor appearing for the respondent.
3. Facts, in brief, germane are as follows: -
3.1. A suo motu complaint is registered before the
Devanahalli Police Station upon receipt and verification of credible
information that accused No.1 has organized a birthday celebration
without obtaining permission from the jurisdictional authority. The
event is said to have been conducted at a mansion known as
"Ellavoma House" situated near MVM School of Kannamangala
Road, which comes within the jurisdiction of Devanahalli Police
Station. The gathering is said to have taken place between 9.30
p.m. on 24-04-2025 and lasted up to 7.15 a.m. on 25-05-2025.
Approximately, 30 to 35 persons are said to have gathered at the
venue and were allegedly consuming intoxicating substance and
alcohol. They were also engaged in loud dancing to music, thereby
4
disturbing peace and tranquility of the locality. The said gathering
was neither sanctioned nor supported with any lawful permission
and, therefore, did constitute act of illegality and unauthorized
assembly. Upon receipt of the said information, witness No.48 and
another Sub-Inspector of Devanahalli Police Station submitted a
report to the Assistant Commissioner of Police, Devanahalli Police
Station. On perusal of the said report, the Assistant Commissioner
of Police authorized the Police to conduct a raid, search and take
appropriate action.
3.2. On 25-05-2025, based upon the said
report/authorization, a crime comes to be registered in Crime No.68
of 2025 for offences punishable under Sections 20(b), 22(a) and
27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'the Act' for short) and Sections 292, 296
and 3(5) of the BNS, alleging that the rave party organizers had
gathered in the said place and have breached the law. No person
was named in the FIR, as it was against unknown persons. The
Police conduct a search, the people gathering there were alleged to
be consuming illicit substance and playing loud music. Upon
5
checking the place, the informant Police found 25 to 30 people
gathered at the party and were selling and consuming cocaine,
ganja and other narcotic substances.
3.3. The aforesaid complaint which had become a FIR is
transmitted to the jurisdictional Magistrate at 7.15 a.m. on 25-05-
2025. The jurisdictional Magistrate permits conduct of search and
seizure of narcotic substances. Upon authorization, a team
comprising of a police personnel, two independent witnesses and 5
panch witnesses proceeded to raid the venue in the early morning
hours. The raid was conducted under the supervision of Assistant
Commissioner of Police. At about 2.30 p.m. on 25-05-2025, the
respondent Police along with the medical officer collected blood
samples from all including the petitioner and marked it as Article
Nos. 59 and 60 for forwarding it to the Forensic Science Laboratory.
3.4. On 25-05-2025 the Police arrest the petitioner/accused
No.12 along with others and released her on the same day, as she
was alleged of consumption of illicit liquor. A Police notice under
Section 67 of the BNSS was issued to the petitioner for questioning
6
and the petitioner was directed to be present before the Police
Station on 27-05-2025 at 10.30 a.m. The blood and urine samples
of all the accused persons were collected, sealed and forwarded to
the State Forensic Science Laboratory, Madiwala, Bangalore.
Investigation continued. Few of other accused were also taken into
custody. The Forensic Science Laboratory report is submitted on
24-06-2025 which depict that Articles 59 and 60, blood and urine
samples of the petitioner tested positive for consumption of
cocaine.
3.5. A coordinate Bench of this Court in Criminal Petition
No.8538 of 2025 granted stay of further investigation in Crime
No.68 of 2025 insofar as accused No.6 was concerned who was also
charged of consumption of banned substance. The Police continued
the investigation and file their final report before the jurisdictional
Court for the afore-quoted offences. The petitioner has been
charge sheeted for the offences under Section 27(b) of the NDPS
Act and Sections 292, 296 and 3(5) of the BNS. The concerned
Court takes cognizance of the offence on 31-12-2025 again for the
afore-quoted offences particularly against the petitioner/accused
7
No.12 and registers Special Case No.1182 of 2025. The petitioner
after taking of cognizance and issuance of summons is before the
Court in the subject petition, seeking quashment of the charge
sheet and entire proceedings against her.
SUBMISSIONS:
PETITIONER:
4.1. The learned counsel appearing for the petitioner would
submit that the petitioner was present in the gathering. Mere
presence at a social event, in the absence of any participation in the
alleged unlawful activity, would not attract liability under the Act.
The charge sheet does not attribute any specific overt act against
the petitioner. There is no recovery of contraband substance from
her possession. The charge sheet is bereft of material, direct or
proximate or having any nexus with the alleged offences. The
petitioner was merely an attendee and had no conscious possession
nor constructive possession. He would contend that the arrest was
in violation of guidelines laid down in D.K. BASU V. STATE OF
WEST BENGAL which mandates that arrest must be accompanied
by documentation including arrest memo, attestation of witnesses
8
and other mandatory factors. Arrest, according to the learned
counsel, is non est in the eye of law.
4.2. The learned counsel would submit that Section 51 of the
BNSS/53 of the earlier regime Cr.P.C. permits medical examination,
including collection of blood and urine samples only after lawful
arrest, subject to the prescribed procedural safeguards. In the case
at hand, no material is placed to indicate lawful arrest. In the
absence of arrest, the extraction of biological sample constitutes an
unlawful and invasive act rendering the procedure illegal,
unconstitutional and inadmissible in evidence. He would contend
that this grave procedural and constitutional infirmity strikes at the
root of the prosecution and renders continuation of proceedings
against the petitioner, a manifest abuse of the process of law.
STATE:
5. Per contra, the learned Additional State Public Prosecutor
Sri B.N. Jagadeesha would refute the submissions to contend that
the petitioner has been tested positive for cocaine. Hence, it is
proof of consumption of the said narcotic drug. The petitioner was
9
arrested and then her blood and urine samples were taken.
Therefore, there is no violation of Section 51 of the BNSS. The
Forensic Science Laboratory report showing her sample testing
positive to cocaine are valid. He would submit that all the
submissions made by the learned counsel for the petitioner cannot
become a ground for quashment of proceedings, as the petitioner is
already enlarged on bail. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. In furtherance whereof, the following issues
would arise for my consideration:
(i) Whether the arrest of the petitioner was lawful?
(ii) Whether the report pursuant to conduct of
medical examination under Section 51 of the
BNSS in the absence of such lawful arrest can be
relied upon to continue the prosecution against
the petitioner?
(iii) Whether the report of such medical examination
can be relied upon as proof of consumption?
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I proceed to consider the issues on their seriatim.
ISSUE NO.1:
Whether the arrest of the petitioner was lawful?
7. The power to arrest is not an unbridled prerogative,
but a solemn trust reposed in the hands of the State, one
that must be exercised with restrained responsibility and
scrupulous adherence to statutory safeguards. Where the
offences alleged are punishable with imprisonment of less
than 7 years, the law does not countenance a cavalier
deprivation of liberty. Instead, it mandates a calibrated
approach, one that privileges notice over custody, and
reason over impulse. With the said prelude the issue needs
consideration.
8. The petitioner is charged for offences under Sections 292,
296, 3(5) of the BNS and 27(b) of the Act, all of which are
punishable with maximum punishment upto 7 years. The provisions
read as follows:
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Sections 292, 296 of the BNS:
"292. Punishment for public nuisance in cases not
otherwise provided for.--Whoever commits a public
nuisance in any case not otherwise punishable by this Sanhita
shall be punished with fine which may extend to one thousand
rupees.
.... .... ....
296. Obscene acts and songs.--Whoever, to the
annoyance of others,--
(a) does any obscene act in any public place; or
(b) sings, recites or utters any obscene song, ballad or
words, in or near any public place,
shall be punished with imprisonment of either
description for a term which may extend to three months, or
with fine which may extend to one thousand rupees, or with
both."
Section 3(5) of the BNS:
"3. General explanations. - (1) ....
.... .... ....
(5) When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were
done by him alone."
Section 27(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985:
(b) where the narcotic drug or psychotropic substance
consumed is other than those specified in or under clause
(a), with imprisonment for a term which may extend to
six months, or with fine which may extend to ten
thousand rupees, or with both.]
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9. What is to be noticed here is, whether the arrest was
lawful considering all the offences against the petitioner are
the ones punishable with less than 7 years of imprisonment.
In cases where offences punishable with imprisonment is
less than 7 years, the accused cannot be arrested strictly.
Instead, a notice under Section 35 of the BNSS must be
served upon the accused. In the case against the petitioner,
before arresting her, she could be taken into custody only if
the conditions under Section 35(1)(b) of the BNSS are met.
Therefore, it becomes necessary to notice Section 35 of the BNSS.
It reads as follows:
"35. When police may arrest without warrant.--(1)
Any police officer may without an order from a Magistrate and
without a warrant, arrest any person--
(a) who commits, in the presence of a police officer, a
cognizable offence; or
(b) against whom a reasonable complaint has been
made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which may be
less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are
satisfied, namely:--
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(i) the police officer has reason to believe on the basis
of such complaint, information, or suspicion that
such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary--
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured,
and the police officer shall record while making such
arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of this
sub-section, record the reasons in writing for not making the
arrest; or
(c) against whom credible information has been received
that he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than seven
years whether with or without fine or with death sentence and
the police officer has reason to believe on the basis of that
information that such person has committed the said offence; or
(d) who has been proclaimed as an offender either under
this Sanhita or by order of the State Government; or
14
(e) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with
reference to such thing; or
(f) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
(g) who is reasonably suspected of being a deserter from
any of the Armed Forces of the Union; or
(h) who has been concerned in, or against whom a
reasonable complaint has been made, or credible information
has been received, or a reasonable suspicion exists, of his
having been concerned in, any act committed at any place out
of India which, if committed in India, would have been
punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(i) who, being a released convict, commits a breach of
any rule made under sub-section (5) of Section 394; or
(j) for whose arrest any requisition, whether written or
oral, has been received from another police officer, provided
that the requisition specifies the person to be arrested and the
offence or other cause for which the arrest is to be made and it
appears therefrom that the person might lawfully be arrested
without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of Section 39, no person
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order of
a Magistrate.
(3) The police officer shall, in all cases where the arrest
of a person is not required under sub-section (1) issue a notice
directing the person against whom a reasonable complaint has
been made, or credible information has been received, or a
15
reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be
specified in the notice.
(4) Where such a notice is issued to any person, it shall
be the duty of that person to comply with the terms of the
notice.
(5) Where such person complies and continues to comply
with the notice, he shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be
recorded, the police officer is of the opinion that he ought to be
arrested.
(6) Where such person, at any time, fails to comply with
the terms of the notice or is unwilling to identify himself, the
police officer may, subject to such orders as may have been
passed by a competent Court in this behalf, arrest him for the
offence mentioned in the notice.
(7) No arrest shall be made without prior permission of
an officer not below the rank of Deputy Superintendent of Police
in case of an offence which is punishable for imprisonment of
less than three years and such person is infirm or is above sixty
years of age."
10. The interpretation of Section 35(1)(b) need not detain
this Court for long or delve deep into the matter. The Apex Court in
SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF
INVESTIGATION1 considers every aspect of Section 35. The Apex
Court holds as follows:
".... .... ....
DISCUSSION
1
2026 SCC Online SC 162
16
16. An investigation by a police officer generally begins
with the recording of information regarding an offence. It is a
process which is primarily aimed at the ascertainment of facts
and circumstances surrounding an alleged crime and involves
the police officer proceeding to the spot of occurrence to collect
evidence and ends with the formation of an opinion as to
whether, on the basis of the material collected, there is a case to
place the accused before a Magistrate for trial and, if so, taking
the necessary steps for the same by filing a charge-sheet. This
has been succinctly dealt with by this Court in the case of State
of Uttar Pradesh v. Bhagwant Kishore Joshi, (1964) 3 SCR 71 in
the following manner:
"17. What is investigation is not defined in the Code of
Criminal Procedure; but in H.N. Rishbud and Inder
Singh v. State of Delhi [(1954) 2 SCC 934 : (1955) 1 SCR
1150, 1157-58] this Court has described, the procedure,
for investigation as follows:
"Thus, under the Code investigation consists generally of
the following steps, (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the
case, (3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of
various persons (including the accused) and the
reduction of their statements into writing, if the officer
thinks fit, (b) the search of places of seizure of things
considered necessary for the investigation and to be
produced at the trial, and (5) formation of the opinion as
to whether on the material collected there is a case to
place the accused before a Magistrate for trial and if so
taking the necessary steps for the same by the filing of a
charge-sheet under Section 173."
This Court, however, has not said that if a police officer
takes merely one or two of the steps indicated by it, what he
has done must necessarily be regarded as
investigation. Investigation, in substance, means
collection of evidence relating to the commission of the
offence. The Investigating Officer is, for this purpose,
entitled to question persons who, in his opinion, are
able to throw light on the offence which has been
committed and is likewise entitled to question the
suspect and is entitled to reduce the statements of
persons questioned by him to writing. He is also entitled
17
to search the place of the offence and to search other
places with the object of seizing articles connected with
the offence. No doubt, for this purpose he has to
proceed to the spot where the offence was committed
and do various other things. But the main object of
investigation being to bring home the offence to the
offender the essential part of the duties of an
Investigating Officer in this connection is, apart from
arresting the offender, to collect all material necessary
for establishing the accusation against the offender.
Merely making some preliminary enquiries upon receipt
of information from an anonymous source or a source of
doubtful reliability for checking up the correctness of
the information does not amount to collection of
evidence and so cannot be regarded as investigation. In
the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a police officer
to make preliminary enquiries before registering an
offence and making a full scale investigation into it..."
(emphasis supplied)
17. An arrest, being an act done by a police officer
in furtherance of an investigation, is discretionary and
optional to be applied on the facts of a particular case.
Section 35 of the BNSS, 2023 provides for situations
where a person may be arrested by a police officer,
without a warrant.
Section 35 of the BNSS, 2023
"35. When police may arrest without warrant.--
(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person--
(a) who commits, in the presence of a police officer, a
cognizable offence; or
(b) against whom a reasonable complaint has been
made, or credible information has been received,
or a reasonable suspicion exists that he has
committed a cognizable offence punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years
18
whether with or without fine, if the following
conditions are satisfied, namely:--
(i) the police officer has reason to believe on the
basis of such complaint, information, or
suspicion that such person has committed the
said offence;
(ii) the police officer is satisfied that such arrest is
necessary--
(a) to prevent such person from committing any
further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the
evidence of the offence to disappear or
tampering with such evidence in any
manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) as unless such person is arrested, his
presence in the Court whenever required
cannot be ensured,
and the police officer shall record while making
such arrest, his reasons in writing:
Provided that a police officer shall, in all
cases where the arrest of a person is not
required under the provisions of this sub-section,
record the reasons in writing for not making the
arrest; or
(c) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to
more than seven years whether with or without fine or
19
with death sentence and the police officer has reason to
believe on the basis of that information that such
person has committed the said offence; or
(d) who has been proclaimed as an offender either under
this Sanhita or by order of the State Government; or
(e) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
(f) who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape, from
lawful custody; or
(g) who is reasonably suspected of being a deserter from
any of the Armed Forces of the Union; or
(h) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists, of his having been concerned in, any
act committed at any place out of India which, if
committed in India, would have been punishable as an
offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(i) who, being a released convict, commits a breach of any
rule made under sub-section (5) of Section 394; or
(j) for whose arrest any requisition, whether written or
oral, has been received from another police officer,
provided that the requisition specifies the person to be
arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by
the officer who issued the requisition.
(2) Subject to the provisions of Section 39, no person
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
20
concerned, shall be arrested except under a warrant or order
of a Magistrate.
(3) The police officer shall, in all cases where the
arrest of a person is not required under sub-section (1)
issue a notice directing the person against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as
may be specified in the notice.
(4) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
(5) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(6) Where such person, at any time, fails to comply
with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders as
may have been passed by a competent Court in this
behalf, arrest him for the offence mentioned in the
notice.
(7) No arrest shall be made without prior permission of an
officer not below the rank of Deputy Superintendent of Police
in case of an offence which is punishable for imprisonment of
less than three years and such person is infirm or is above
sixty years of age."
(emphasis supplied)
18. Section 35(1) of the BNSS, 2023, through the use of
the word "may," makes the position of law rather clear that the
power of arrest is discretionary and optional. The power of arrest
under Section 35(1)(a) to Section 35(1)(j) of the BNSS,
2023 are distinct and different from each other, with the
commonality being an offence which is cognizable in nature.
21
19. To attract the power of arrest under
Section 35(1)(b) of the BNSS, 2023, the conditions
mentioned thereunder ought to be complied with
scrupulously. Section 35(1)(b)(i) and Section
35(1)(b)(ii) of the BNSS, 2023 must be read together,
meaning thereby that compliance with
Section 35(1)(b)(i) of the BNSS, 2023 is a sine qua non in
all cases of arrest.
20. Section 35(1)(b)(i) of the BNSS, 2023 speaks
about the "reason to believe" on the part of the police
officer. Such a reason to believe should be formed on the
basis of a complaint, information, or suspicion that the
person concerned has committed the offence. However,
this alone would not suffice. Additionally, any one of the
conditions mentioned under Section 35(1)(b)(ii) of
the BNSS, 2023 must also be satisfied. In other words, it
is not required that all the conditions mentioned under
Section 35(1)(b)(ii) of the BNSS, 2023 should be
available, but only the existence of one of them that is
required.
21. After being satisfied that there is a necessity of
arrest, a police officer is bound to record his reasons either
for arrest, as provided for under Section 35(1)(b) of
the BNSS, 2023, or for merely issuing a notice under
Section 35(3) of the BNSS, 2023. Section 35(1)(b) of
the BNSS, 2023, thus, carves out an exception, with its
inbuilt safeguards.
22. Suffice it is to state that an investigation can go on
even without an arrest. While undertaking the exercise of
collecting the evidence for the purpose of forming his opinion over
the commission of a cognizable offence, a police officer shall pose
a question, to himself, on the necessity of an arrest. This
safeguard is provided as, in any case, the power to arrest an
accused person is always available with a police officer even after
he records his reasons, in writing, for not doing so at an earlier
stage.
Joginder Kumar v. State of UP, (1994) 4 SCC 260
22
"20...No arrest can be made because it is lawful for
the police officer to do so. The existence of the power to
arrest is one thing. The justification for the exercise of it
is quite another. The police officer must be able to
justify the arrest apart from his power to do so. Arrest
and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a
person. No arrest can be made in a routine manner on a
mere allegation of commission of an offence made
against a person. It would be prudent for a police officer
in the interest of protection of the constitutional rights
of a citizen and perhaps in his own interest that no
arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness
and bona fides of a complaint and a reasonable belief
both as to the person's complicity and even so as to the
need to effect arrest. Denying a person of his liberty is a
serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of
the fundamental right to personal liberty and freedom. A
person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some reasonable
justification in the opinion of the officer effecting the
arrest that such arrest is necessary and justified. Except
in heinous offences, an arrest must be avoided if a
police officer issues notice to person to attend the
Station House and not to leave the station without
permission would do."
(emphasis supplied)
23. Section 35(3) of the BNSS, 2023, once again,
reiterates the object of the enactment that an arrest by a
police officer is not mandatory in all cases. This provision
applies to all cognizable offences. However, insofar as the
offences punishable with imprisonment up to a period of 7
years are concerned, this provision will have to be read
along with Section 35(1)(b) of the BNSS, 2023, and its
proviso which mandates the furnishing of reasons, in
writing, for both, making an arrest and when there is no
requirement to do so. As stated above, the requirement of
not arresting an accused is qua the stage of issuing notice
under Section 35(3) of the BNSS, 2023. Hence, it is amply
clear that a harmonious construction of
Section 35(1)(b) and Section 35(3) of the BNSS,
2023 needs to be made.
23
Satender Kumar Antil v. Central Bureau of Investigation, 2025
SCC OnLine SC 1578
"22. Section 35(4) of the BNSS, 2023 imposes a duty
on the recipient of the notice to the effect that once the
notice is served, the person must comply with every
term of the notice. Section 35(5) of the BNSS,
2023 provides that as long as the person to whom the
notice is issued, appears as is required and continues to
comply with the notice, they cannot be arrested in
relation to the alleged offence. Arrest may be made only
if the Investigating Agency records specific reasons as
to why the arrest is necessary."
(emphasis supplied)
24. Section 35(5) of the BNSS, 2023 facilitates the
liberty of a person by imposing an implied prohibition of
arrest when a person complies with a notice issued under
Section 35(3) of the BNSS, 2023. This provision reiterates
the fact that any subsequent arrest, being an exception, is
warranted only when a police officer forms an opinion for
such an arrest, which he is duty bound to record, in
writing, by furnishing adequate reasons."
The Apex Court holds that to attract the power of arrest
under Section 35(1)(b) of the BNSS, the conditions
mentioned therein had to be complied with scrupulously.
Section 35(1)(b)(i) of the BNSS is sine qua non in all cases
of arrest which speaks of reasons to believe on the part of
the police officer and such reasons to believe against the
accused should be formed on the basis of a complaint,
information or suspicion that the person concerned has
24
committed the offence. Additionally, any one of the
conditions mentioned in Section 35(1)(b)(ii) of the BNSS
also must be satisfied. After being satisfied that there is
necessity of arrest, the Police Officer is bound to record
reasons, either for arrest as provided under Section 35(1)(b)
of the BNSS or for merely issuing a notice under Section
35(3) of the BNSS. What is clearly mandated is that the
reasons for arrest must be recorded and the reason for
issuing a notice instead of arrest also must be recorded.
11. In the case at hand, the narrative of arrest is
conspicuously barren of the essential legal attributes that
can give legitimacy to such an act. There is neither record of
reasons to believe nor articulation of necessity, nor
communication of grounds of arrest to the petitioner. Arrest,
in such circumstances, degenerates into empty ritual, away
from the discipline of law and bereft of Constitutional
propriety. Arrest is not a fleeting administrative act; it is a
profound intrusion upon personal liberty. It must be
preceded by reason, accompanied by transparency and
25
justified by necessity. The absence of these fundamental
elements renders the so called arrest a legal nullity. The Apex
Court considers who is an accused person and which act of a person
can be considered to have been arrested. The Apex Court in
BALKISHAN A. DEVIDAYAL v. STATE OF MAHARASHTRA2
holds as follows:
"........ ......... .........
70. To sum up, only a person against whom a
formal accusation of the commission of an offence has
been made can be a person "accused of an offence"
within the meaning of Article 20(3). Such formal
accusation may be specifically made against him in an
FIR or a formal complaint or any other formal document
or notice served on that person, which ordinarily results
in his prosecution in court. In the instant case no such formal
accusation had been made against the appellant when his
statement(s) in question were recorded by the RPF officer."
The Apex Court has expounded upon who may be regarded as
an 'accused' and when a person can be said to have been arrested,
it is only when a formal acquisition-embroidered in an FIR,
complaint or other formal proceeding capable of culminating in
prosecution is made, that person assumes the character of an
accused within the meaning of Article 20(3) of the Constitution.
2
(1980) 4 SCC 600
26
12. The aforesaid judgment is followed in DIRECTORATE OF
ENFORCEMENT v. DEEPAK MAHAJAN3. The Apex Court holds as
follows:
"........ ......... .........
81. The essence of the above decisions is that to
bring a person within the meaning of 'accused of any
offence', that person must assimilate the character of an
'accused person' in the sense that he must be accused of
any offence.
........ ......... .........
92. A thorough and careful study of all the provisions of
the Code manifestly discloses that the word 'accused' in the
Code denotes different meanings according to the context
in which it is deployed; in that sometimes the said word
is employed to denote a person arrested, sometimes a
person against whom there is an accusation, but who is
yet not put on trial and sometimes to denote a person on
trial and so on.
........ ......... .........
94. It may not be out of place to mention here that an
officer-in-charge of a police station who is empowered under
Section 156 to investigate on an information received under
Section 154 or otherwise takes up the investigation by
proceeding to the spot "for the discovery and arrest of
the offender when he has reason to suspect the commission of
an offence" as contemplated under Section 157 of the Code. At
that stage, the investigating officer does not suddenly jump to a
conclusion that the person against whom the investigation has
commenced has committed an offence. But he can arrive at
such a conclusion only when the investigation consummates to a
finality on the collection of evidence eliminating all suspicion and
establishing the commission of the offence. In case the
3
(1994) 3 SCC 440
27
investigating officer arrives at a conclusion that no offence is
made out he forwards his final report to that effect.
........ ......... .........
98. Thirdly, in the Code different expressions are
used under various provisions to denote a person
involving in a criminal proceeding such as 'offender',
'person', 'accused', 'accused person', "accused of an
offence" depending on the nature of the proceeding."
This principle finds reaffirmation in DEEPAK MAHAJAN, where the
Apex Court has elucidated, that while expressions 'person',
'offender', 'accused' may be employed across statutory
provisions, the essence remains constant. There must exist
an accusation, in a legally cognizable form, one that carries
the potential of prosecution. Mere suspicion, uncrystallized
into formal accusation, would not suffice. This again bears
lucid interpretation by the Apex Court in DEEPAK MAHAJAN's case
supra in the following paragraphs:
"........ ......... .........
46. The word 'arrest' is derived from the French
word 'Arreter' meaning "to stop or stay" and signifies a
restraint of the person. Lexicologically, the meaning of
the word 'arrest' is given in various dictionaries
depending upon the circumstances in which the said
expression is used. One of us, (S. Ratnavel Pandian, J. as he
then was being the Judge of the High Court of Madras) in Roshan
Beevi v. Joint Secretary, Government of T.N. [1984 Cri LJ 134 :
28
(1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)] had an
occasion to go into the gamut of the meaning of the word 'arrest'
with reference to various textbooks and dictionaries, the New
Encyclopaedia Britannica, Halsbury's Laws of England, A
Dictionary of Law by L.B. Curzon, Black's Law
Dictionary and Words and Phrases. On the basis of the meaning
given in those textbooks and lexicons, it has been held that:
"[T]he word 'arrest' when used in its ordinary and
natural sense, means the apprehension or restraint or
the deprivation of one's personal liberty. The question
whether the person is under arrest or not, depends not
on the legality of the arrest, but on whether he has been
deprived of his personal liberty to go where he pleases.
When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in
the taking into custody of another person under
authority empowered by law, for the purpose of holding
or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The
essential elements to constitute an arrest in the above
sense are that there must be an intent to arrest under
the authority, accompanied by a seizure or detention of
the person in the manner known to law, which is so
understood by the person arrested."
47. There are various sections in Chapter V of the
Code titled "Arrest of persons" of which Sections 41, 42,
43 and 44 empower different authorities and even private
persons to arrest a person in given situation. Section 41
deals with the power of a police officer to arrest any
person without an order from a Magistrate and without a
warrant. Section 42 deals with the power of a police officer to
arrest any person who in the presence of a police officer has
committed or has been accused of committing a non-cognizable
offence and who refuses on demand "to give his name and
residence or gives a name or residence which such officer has
reason to believe to be false". Section 43 empowers any private
person to arrest any person who in his presence commits a non-
cognizable offence, or any proclaimed offender. Section 44
states that when any offence is committed in the presence of a
Magistrate whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to arrest
the offender and may thereupon subject to the provisions
contained in the Code as to bail commit the offender to custody."
29
In the present case, the FIR was initially registered against
unknown persons, with individuals gradually brought within its fold.
The assertion that the petitioner was arrested and released
on the same day, necessitates a closer examination of what
constitutes arrest, as the Apex Court has clarified arrest
involves the act of taking a person lawful custody under
lawful authority, with an intent to detain them, to answer a
criminal charge, or to prevent the commission of an offence.
The presence of lawful authority and intent, are thus
indispensable. Measured against these principles, the
petitioner's alleged arrest, appears to falter on fundamental
grounds.
13. Jurisprudence has now evolved to firmly establish that
arrest cannot be effectuated without furnishing the grounds thereof.
The communication of reasons is not a mere procedural formality.
Its absence vitiates the very legality of arrest, and once vitiated,
the custody cannot be sustained even for a moment. This position
has been reiterated in KASIREDDY UPENDER REDDY v. STATE
30
OF ANDHRA PRADESH4 as well as in the Seminal Guidelines laid
down in D.K. BASU v. STATE OF WEST BENGAL. The Apex Court
in KASIREDDY UPENDER REDDY supra holds as follows:
"........ ......... .........
18. Thus, the following principles of law could be said to
have been laid down, rather very well explained, in Vihaan
Kumar (supra):
a) The requirement of informing the person arrested of the
grounds of arrest is not a formality but a mandatory
constitutional condition.
b) Once a person is arrested, his right to liberty under Article
21 is curtailed. When such an important fundamental right
is curtailed, it is necessary that the person concerned
must understand on what grounds he has been arrested.
c) The mode of conveying the information of the grounds of
arrest must be meaningful so as to serve the true object
underlying Article 22(1).
d) If the grounds of arrest are not informed as soon as
may be after the arrest, it would amount to a
violation of the fundamental right of the arrestee
guaranteed under Article 22(1).
e) On the failure to comply with the requirement of
informing the grounds of arrest as soon as may be
after the arrest, the arrest would stand vitiated.
Once the arrest is held to be vitiated, the person
arrested cannot remain in custody even for a
second.
f) If the police want to prove communication of the
grounds of arrest only based on a diary entry, it is
4
2025 SCC OnLine SC 1228
31
necessary to incorporate those grounds of arrest in
the diary entry or any other document. The grounds
of arrest must exist before the same are informed.
g) When an arrestee pleads before a court that the
grounds of arrest were not communicated, the
burden to prove the compliance of Article 22(1) is
on the police authorities.
h) The grounds of arrest should not only be provided to the
arrestee but also to his family members and relatives so
that necessary arrangements are made to secure the
release of the person arrested at the earliest possible
opportunity so as to make the mandate of Article 22(1)
meaningful and effective, failing which, such arrest may
be rendered illegal.
........ ......... .........
36. If a person is arrested on a warrant, the grounds for
reasons for the arrest is the warrant itself; if the warrant is read
over to him, that is sufficient compliance with the requirement
that he should be informed of the grounds for his arrest. If he is
arrested without a warrant, he must be told why he has
been arrested. If he is arrested for committing an offence,
he must be told that he has committed a certain offence
for which he would be placed on trial. In order to inform
him that he has committed a certain offence, he must be
told of the acts done by him which amounts to the
offence. He must be informed of the precise acts done by
him for which he would be tried; informing him merely of
the law applicable to such acts would not be enough. (See
: Vimal Kishore Mehrotra (supra))"
14. Long before the aforementioned judgment/s of the Apex
Court, the Apex Court in D.K. BASU v. STATE OF WEST BENGAL5
has laid down certain guidelines. The guidelines are as follows:
"........ ......... .........
5
(1997) 1 SCC 416
32
35. We, therefore, consider it appropriate to issue
the following requirements to be followed in all cases of
arrest or detention till legal provisions are made in that
behalf as preventive measures:
(1) The police personnel carrying out the arrest and
handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel
who handle interrogation of the arrestee must be recorded in
a register.
(2) That the police officer carrying out the arrest of
the arrestee shall prepare a memo of arrest at the time
of arrest and such memo shall be attested by at least
one witness, who may either be a member of the family
of the arrestee or a respectable person of the locality
from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the
time and date of arrest.
(3) A person who has been arrested or detained and is
being held in custody in a police station or interrogation centre
or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has
been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself
such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the
police station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right
to have someone informed of his arrest or detention as soon
as he is put under arrest or is detained.
33
(6) An entry must be made in the diary at the place of
detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also
examined at the time of his arrest and major and minor
injuries, if any present on his/her body, must be recorded at
that time. The "Inspection Memo" must be signed both by the
arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health Services of the State or
Union Territory concerned. Director, Health Services should
prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the Illaqa
Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district
and State headquarters, where information regarding the
arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12
hours of effecting the arrest and at the police control room it
should be displayed on a conspicuous notice board.
36. Failure to comply with the requirements
hereinabove mentioned shall apart from rendering the
official concerned liable for departmental action, also
render him liable to be punished for contempt of court
and the proceedings for contempt of court may be
instituted in any High Court of the country, having
territorial jurisdiction over the matter.
34
37. The requirements, referred to above flow from
Articles 21 and 22(1) of the Constitution and need to be
strictly followed. These would apply with equal force to
the other governmental agencies also to which a
reference has been made earlier.
38. These requirements are in addition to the
constitutional and statutory safeguards and do not detract
from various other directions given by the courts from
time to time in connection with the safeguarding of the
rights and dignity of the arrestee.
39. The requirements mentioned above shall be forwarded
to the Director General of Police and the Home Secretary of
every State/Union Territory and it shall be their obligation to
circulate the same to every police station under their charge and
get the same notified at every police station at a conspicuous
place. It would also be useful and serve larger interest to
broadcast the requirements on All India Radio besides being
shown on the National Network of Doordarshan any by
publishing and distributing pamphlets in the local language
containing these requirements for information of the general
public. Creating awareness about the rights of the arrestee
would in our opinion be a step in the right direction to combat
the evil of custodial crime and bring in transparency and
accountability. It is hoped that these requirements would help to
curb, if not totally eliminate, the use of questionable methods
during interrogation and investigation leading to custodial
commission of crimes."
Applying the said principles to the case at hand, it becomes
manifest that the so-called arrest of the petitioner is, on the
face of it, unsustainable in law. There is no material to
demonstrate that the arresting officer, recorded any
reasonable suspicion or credible information linking the
35
petitioner to a cognizable offence. There is a conspicuous
absence of any recorded reasons, justifying the arrest and
equally no evidence that the ground of arrest were even
communicated to the petitioner. A reasonable suspicion is
not mere conjecture or a fleeting possibility. It demands
foundation rooted in due diligence, an exercise of mind by an
officer entrusted with statutory authority. Such foundational
requirements are entirely absent in the case at hand. None,
of the procedural or substantive safeguards, that lend
legitimacy to an arrest have been observed. In the
circumstances, the conclusion is inescapable; the arrest of the
petitioner is patently illegal. The first issue, therefore, stands
answered unequivocally in favour of the petitioner.
ISSUE NO.2:
Whether the report pursuant to conduct of medical
examination under Section 51 of the BNSS in the absence of
such lawful arrest can be relied upon to continue the
prosecution against the petitioner?
36
15. The extraction of petitioner's blood sample is sought to be
justified on the tenuous and specious premise of the aforesaid
arrest. However, the legality of such an act must be tested against
the statutory framework governing medical and biological
examination of an accused. This domain is now regulated by
Section 51 of the BNSS, corresponding to Section 53 of the
erstwhile CrPC. It is, therefore, apposite to juxtapose the two
provisions. They read as follows:
SECTION 51 OF BNSS SECTION 53 OF CRPC
51. Examination of accused by 53. Examination of accused by
medical practitioner at request medical practitioner at the
of police officer.--(1) When a request of police officer.--(1)
person is arrested on a charge of When a person is arrested on a
committing an offence of such a charge of committing an offence of
nature and alleged to have been such a nature and alleged to have
committed under such been committed under such
circumstances that there are circumstances that there are
reasonable grounds for believing reasonable grounds for believing
that an examination of his person that an examination of his person
will afford evidence as to the will afford evidence as to the
commission of an offence, it shall commission of an offence, it shall
be lawful for a registered medical be lawful for a registered medical
practitioner, acting at the request of practitioner, acting at the request of
any police officer, and for any a police officer not below the rank
person acting in good faith in his of Sub-Inspector, and for any
aid and under his direction, to make person acting in good faith in his
such an examination of the person aid and under his direction, to make
arrested as is reasonably necessary such an examination of the person
in order to ascertain the facts which arrested as is reasonably necessary
may afford such evidence, and to in order to ascertain the facts which
use such force as is reasonably may afford such evidence, and to
37
necessary for that purpose. use such force as is reasonably
necessary for that purpose.
(2) Whenever the person of a (2) Whenever the person of a
female is to be examined under this female is to be examined under this
section, the examination shall be section, the examination shall be
made only by, or under the made only by, or under the
supervision of, a female registered supervision of, a female registered
medical practitioner. medical practitioner.
Explanation.--In this section and
(3) The registered medical in Sections 53-A and 54,--
practitioner shall, without any (a) "examination" shall
delay, forward the examination include the examination of
report to the investigating officer. blood, blood stains,
Explanation.--In this section and semen, swabs in case of
Sections 52 and 53,-- sexual offences, sputum
(a) "examination" shall and sweat, hair samples
include the examination of and finger nail clippings
blood, blood stains, by the use of modern and
semen, swabs in case of scientific techniques
sexual offences, sputum including DNA profiling
and sweat, hair samples and such other tests
and finger nail clippings which the registered
by the use of modern and medical practitioner thinks
scientific techniques necessary in a particular
including DNA profiling case;
and such other tests (b) "registered medical
which the registered practitioner" means a
medical practitioner thinks medical practitioner who
necessary in a particular possesses any medical
case; qualification as defined in
(b) "registered medical clause (h) of Section 2 of
practitioner" means a the Indian Medical Council
medical practitioner who Act, 1956 and whose
possesses any medical name has been entered in
qualification recognised a State Medical Register.
under the National Medical
Commission Act, 2019 (30
of 2019) and whose name
has been entered in the
National Medical Register
or a State Medical
38
Register under that Act.
A careful reading of Section 51 of the BNSS and Section 53 of
the CrPC reveals that the power to conduct medical or
biological examination is inextricably linked to a lawful
arrest. The statute is explicit, such examination can be undertaken
only when the person is under arrest and that too upon a request
made by a police officer for such examination. The foundational
requirement, therefore, is the existence of a valid arrest. The
contours of what constitutes an 'accused' and the
circumstances under which an arrest may be deemed to
lawful, have already been exhaustively examined under
issue No. 1. It stands admitted that the petitioner's blood
sample was obtained, in the absence of a lawful arrest, as
the essential procedural safeguards and legal prerequisites
governing arrest were neither observed nor complied with,
rendering the purported arrest invalid in the eye of law.
39
16. The interpretation of Section 53 of the CrPC, now Section
51 of the BNSS, has been subject to the elucidation of law by the
Apex Court and different High Courts. It becomes opposite to refer
to those elucidations of law.
16.1. The Apex Court in RITESH SINHA v. STATE OF
UTTAR PRADESH6 holds as follows:
"........ ......... .........
50. It was argued that Section 53 of the Code only
contemplates medical examination and taking of voice sample is
not a medical examination. Section 53 talks of examination
by registered medical practitioner of the person of the
accused but, does not use the words "medical
examination". Similarly, Explanation (a) to Section 53 does not
use the words "medical examination". In my opinion, Section 53
need not be confined to medical examination. It is pertinent to
note that in Selvi [(2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] ,
this Court was considering whether narco-analysis, polygraph
examination and the BEAP tests violate Article 20(3) of the
Constitution. While examining this question, this Court analysed
Section 53 and stated that because those tests are testimonial in
nature, they do not fall within the ambit of Section 53 of the
Code but this Court did not restrict examination of person
contemplated in Section 53 to medical examination by a medical
practitioner even though the tests impugned therein were tests
that were clearly not to be conducted by the medical
practitioner. It must be remembered that Section 53 is primarily
meant to serve as aid in the investigation. The examination of
the accused is to be conducted by a medical practitioner
at the instance of the police officer, who is in charge of
the investigation. On a fair reading of Section 53 of the
Code, I am of the opinion that under that section, the
6
(2013) 2 SCC 357
40
medical practitioner can conduct the examination or
suggest the method of examination."
16.2. In CHOTKAU v. STATE OF UTTAR PRADESH7 the Apex
Court holds as follows:
"........ ......... .........
74. Section 53(1) of the Code enables a police
officer not below the rank of Sub-Inspector to request a
registered medical practitioner, to make such an
examination of the person arrested, as is reasonably
necessary to ascertain the facts which may afford such
evidence, whenever a person is arrested on a charge of
committing an offence of such a nature that there are
reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of an
offence. Section 53(1) reads as follows:
"53. Examination of accused by medical practitioner
at the request of police officer.--(1) When a person is
arrested on a charge of committing an offence of such a
nature and alleged to have been committed under such
circumstances that there are reasonable grounds for believing
that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered
medical practitioner, acting at the request of a police officer
not below the rank of Sub-Inspector, and for any person
acting in good faith in his aid and under his direction, to make
such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford
such evidence, and to use such force as is reasonably
necessary for that purpose.""
16.3. In MUNNA PANDEY v. STATE OF BIHAR8, the Apex
Court holds as follows:
7
(2023) 6 SCC 742
41
"........ ......... .........
28. Section 53(1)CrPC enables a police officer not
below the rank of Sub-Inspector to request a registered
medical practitioner, to make such an examination of the
person arrested, as is reasonably necessary to ascertain
the facts which may afford such evidence, whenever a
person is arrested on a charge of committing an offence of
such a nature that there are reasonable grounds for
believing that an examination of his person will afford
evidence as to the commission of an offence."
16.4. The High Court of Telangana at Hyderabad in
KOKKIRIGADDA DEVARAJ v. STATE OF ANDHRA PRADESH9
holds as follows:
"........ ......... .........
11. So, by virtue of the amendment, the term
'examination' imbibes in itself DNA profiling also among other
tests. Since Section 53 appears in the Chapter-V of Cr.
P.C. under the heading "Arrest of Persons" and since
phraseology such as "when a person is arrested on a
charge of committing an offence examination of his
person will afford evidence as the commission of an
offence etc., is employed, one can understand that the
examination of such arrested person takes place during
the course of investigation.
12. Then, we have judicial pronouncements to the effect
that though a person is not in custody and he is on bail, still
concerned Court on the request of the Investigating Officer can
direct the accused to undergo the test mentioned in Section 53
to facilitate the investigation."
8
(2024) 18 SCC 728
9
2018 SCC OnLine Hyd.2261
42
16.5. The High Court of Madras in THANIEL VICTOR v.
STATE10 has held as follows:
"........ ......... .........
27. The Andhra Pradesh High Court in Ananth
Kumar v. State of Andhra Pradesh, 1977 Crl LJ 1797 had
occasion to consider the scope of S. 53 Cr. P.C. The Court held
that under the new Code, provision had been made for
the medical examination of the arrested person at the
instance of a police officer of a proper rank and also at
the instance of the arrested person himself, and such
examination necessarily formed part of investigation as
defined in S. 2(4) of the Code. The Court also took the view
that examination of a person by a Medical Paractitioner must
logically take in examination, by testing his blood, sputum,
semen, urine, etc. which cannot be held to be outside the scope
of S. 53 of the Code. As the section itself contemplated, even
reasonable force can be used to subject the arrested to medical
examination, though it may discomfort him. The opinion
expressed by me earlier is echoed in this ruling of the Andhra
Pradesh High Court. Where it has been held that release of an
arrested person on bail cannot take away the reality of
the situation and the arrested person does not cease to
be an arrested person or an accused person for the
purpose of Ss. 53 and 54 of the Code. On the question of
imposition of conditions, while directing release on bail of the
accused, the learned Judge held that the condition "otherwise in
the interests of Justice" contemplated in Section 437(3)(c) Cr.
P.C. can be imposed. The Court further held that direction could
be given by a Court, subjecting a person released on bail, for
medical examination, since it was a condition necessary for
investigation."
In RITESH SINHA, the Apex Court in paragraph 50 delineates the
scope on limitations of such powers. Similarly in CHOTKAU and
10
1990 SCC OnLine Mad 126
43
MUNNA PANDEY, the Apex Court reiterates the necessity of strict
adherence to statutory safeguards before subjecting an individual to
medical examination. The High Court of Telangana and the High
Court of Madras have echoed these principles, underscoring that
such examinations cannot be conducted as a matter of routine or
convenience, but only upon the satisfaction of legally mandated
conditions.
17. A harmonious reading, a blend of these judicial
pronouncements yields a singular unmistakable principle, even a
medical or biological examination cannot be undertaken unless the
Investigating Officer, records reasonable grounds demonstrating
that such examination is imperative, for the purposes of
investigation. Upon such satisfaction, a formal request must be
made to the registered medical practitioner, who may then proceed
with the examination, but crucially, only of a person who has been
lawfully arrested.
18. In the case at hand, the very substratum of this
process - a lawful arrest, is conspicuously absent. The
petitioner was never arrested in accordance with law.
44
Consequently, the subsequent act of subjecting her to
medical/biological examination lacks legal foundation. Thus,
the collection of petitioner's blood sample far from being a
lawful investigative step, stands vitiated as an act, in clear
transgression of statutory mandate. The medical
examination, having been concluded in the absence of valid
arrest and without adherence to prescribed safeguards,
inevitably collapses under the weight of legal scrutiny,
rendering it unsustainable in law.
ISSUE NO.3:
Whether the report of such medical examination can be
relied upon as proof of consumption?
19. The gravamen of the charge against the petitioner is the
alleged consumption of cocaine. This allegation rests entirely upon
a medical report. However, the medical report itself is not an
independent or unimpeachable piece of evidence. It is a direct
product of procedurally tainted process. The procedural aberration,
in turn finds its genesis in an arrest that has already been held to
45
be illegal. Apart from this infirm medical report, there exists no
other material, either by way of allegation or evidence or any
corroboration linking the petitioner to consumption of any narcotic
substance. There is no recovery of contraband from her possession.
There is no independent corroboration. In such circumstances, the
very foundation required to invoke Section 27(b) of the Act stands
conspicuously absent. Section 27(b) as noticed supra, contemplates
punishment for consumption of a narcotic substance. The
jurisprudence, surrounding the provision, is both consistent
and instructive. Courts across the country have repeatedly
held that the sine qua non for establishing consumption is
credible and legally obtained evidence, most commonly in
the form of a valid medical or forensic report based on a
biological sample.
19.1. It now becomes apposite to refer to the judgments of
the courts of the country. This Court in HANUMANTHA v. STATE
OF KARNATAKA11 has held as follows:
"........ ......... .........
11
2024 SCC OnLine Kar 10634
46
10. Section 27 of the Act reads as follows:
"27. Punishment for consumption of any narcotic
drug or psychotropic substance.--Whoever consumes any
narcotic drug or psychotropic substance shall be punishable,--
(a) where the narcotic drug or psychotropic
substance consumed is cocaine, morphine, diacetyl-
morphine or any other narcotic drug or any psychotropic
substance as may be specified in this behalf by the
Central Government by notification in the Official
Gazette, with rigorous imprisonment for a term which
may extend to one year, or with fine which may extend
to twenty thousand rupees, or with both; and
(b) where the narcotic drug or psychotropic substance
consumed is other than those specified in or under clause (a),
with imprisonment for a term which may extend to six
months, or with fine which may extend to ten thousand
rupees, or with both."
(Emphasis supplied)
Section 27 makes it an offence of any person consuming
any narcotic drugs or psychotropic substance. The
punishment that is imposable is one year with or without
fine. But, nonetheless, it is an offence under the Act. If
consumption has to be proved, the primary evidence would
be the presence of contraband substance in the blood
sample. The blood sample is drawn and sent to FSL and the
report of FSL indicates no contraband substance of any kind in the
blood samples of the petitioners. The charge sheet, therefore,
with mala fide intention, is deliberately filed by the Station House
Officer and the Police Sub-Inspector of Varthur Police Station."
19.2. The High Court of Kerala in DEON JOSEY v. STATE OF
KERALA12 has held as follows:
12
Crl.M.C.No.3609 of 2023 decided on 27-06-2023
47
"........ ......... .........
8. Section 27 would apply only when the person is
found consuming any narcotic drug or psychotropic
substance. No material has been collected by the
investigating officer to substantiate that the petitioner
was consuming a narcotic drug or a psychotropic
substance. In that view of the matter, the continuance of
proceedings against the petitioner is a clear abuse of
process.
9. For the aforesaid reasons, the petitioner is entitled to
succeed. All further proceedings as against him in C.C.No.786 of
2022 on the file of the Additional Chief Judicial Magistrate Court
(Economic Offences), Ernakulam, is quashed."
19.3. Again, the High Court of Kerala in ANURAG SHAJI v.
STATE OF KERALA13 has held as follows:
"........ ......... .........
4. The short point raised by the petitioner is that
without a chemical analysis report, there is no chance for
a successful prosecution and hence the continuation of
the prosecution case against the petitioner is an abuse of
process of court. This Court directed the public
Prosecutor to get instructions whether any expert opinion
is obtained to show that the beedi used by the petitioner
is a narcotic substance. The Public Prosecutor after
getting instructions submitted that no analysis report is
obtained in this case.
5. In the light of the above submission of the Public
Prosecutor that there is no analysis report, the
continuation of the prosecution against the petitioner is
an abuse of process of court. No materials has been
collected by the Investigating Officer to substantiate that
the petitioner was consuming a narcotic drug or
13
Crl.M.C.No.9931 of 2023 decided on 5-12-2023
48
psychotropic substance. The same view was taken by this
Court in the order dated 27.06.2023 in Crl. M.C No. 3609/2023.
In the light of the same this Criminal Miscellaneous Case can be
allowed."
19.4. The State of Telangana in CHALLAPALLY BHARGAV
SAI v. STATE OF TELANGANA14 has held as follows:
"........ ......... .........
17 . As extracted supra, to make out an offence
under Section 27 of NDPS Act, consumption of narcotic
drug or psychotropic substance is to be made out. It is
settled law that to bring home the contents of Section 27
of NDPS Act against petitioner, the individual must be
tested positive for arty of the banned substance uncler
NDpS Act. It is the responsibility of the State to establish
that petitioner/accused is under the influence of any oi
the banned substance.In the absence of any,
documentary evidence/test, an adverse inference can be
drawn."
(Emphasis supplied at each instance)
This Court in HANUMANTHA supra has recognized this principle
and the High Court of Kerala in DEON JOSEY and again in the case
of ANURAG SHAJI has emphatically held that in the absence of
material demonstrating consumption, the prosecution cannot be
sustained under Section 27. Similarly, the High Court of Telangana
in CHALLAPALLY supra has held that the consumption of a
14
Crl.P.No.15414 of 2024 decided on 16-04-2025
49
narcotic or psychotropic substance can be established, only where
the individual tests positive for such substance.
20. Thus, the legal position is unambiguous. The
fulcrum of Section 27(b) is consumption. The fulcrum of
providing such consumption is the blood sample. The
legitimacy of such blood sample is contingent upon a lawful
medical examination. The medical examination in turn, is
governed by Section 51 of the BNSS, which can be set into
motion, only upon the lawful arrest. In the present case, this
chain stands irreparably broken at its very inception. The arrest
itself has been found to be unlawful. Consequently, the
medical examination conducted pursuant thereto is vitiated.
The blood sample being a derivative of that illegality stands
tainted and the medical report founded upon the tainted
sample, cannot be accorded any evidentiary value. In the
absence of a legally obtained forensic report, it is wholly
inconceivable as to how the petitioner can be compelled to
undergo the rigors and ordeal of a criminal trial. To permit
such prosecution to continue would be to sanction a process built
50
entirely upon illegality. Accordingly, the proceedings initiated
against the petitioner, solely predicated on the alleged consumption
of cocaine, under Section 27(b) of the Act, cannot be sustained and
would merit obliteration.
SUMMARY OF FINDINGS:
(1) Section 51 of the BNSS, which governs medical
examination can be invoked only upon the existence of
a lawful arrest. In the absence of such arrest, the
collection of a blood sample is impermissible in law.
(2) A lawful arrest necessitates strict compliance with
statutory safeguards including communication of the
grounds of arrest, recording of reasons and adherence
to all mandatory procedural requirements. Where a
blood sample is produced pursuant to an illegal arrest,
the resulting medical and forensic report stands vitiated
and cannot be relied upon by the prosecution.
(3) The charge is solely founded upon the alleged
consumption of a narcotic substance, as inferred from
the blood sample. Once the blood sample itself is held
to be illegally obtained, the very substratum of the
prosecution case collapses, consequently, the
51
continuation of proceedings against the petitioner would
amount to an abuse of the process of the law and
cannot be permitted.
21. For aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in Special Case No.1182 of 2025 pending
before VIII Additional District and Sessions Judge and
Special Judge for NDPS cases at Bangalore Rural
District and all actions leading to the said special case
stand quashed qua the petitioner/accused No.12.
SPONSORED
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of petitioner under Section
482 of Cr.P.C. and the same shall not bind or influence
the proceedings against other accused.
Consequently, I.A.No.2 of 2026 also stands disposed.
SD/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ