JUDGMENT Dama Seshadri Naidu, J. - Introduction: There are two bail applications. Arrested for the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act"), a man and a woman seek their release on various grounds. They have pleaded that (a) without an FSL Report, the chargesheet is incomplete, attracting Section 36A (4) of the Act; (b) that 'field test' is inadequate and suffers from an element of departmental bias; (c) that the whole contraband must be subjected to forensic analysis to determine the nature of the substance and the quantity as well; and (d) that a woman's arrest before sun rise offends section 46 of Cr PC? 2. Let us see which ground stands the judicial scrutiny. Facts: 3. The applicant is the sole accused in Crime No. 7/2020, registered by the Anti Narcotic Cell Police Station, Goa. This crime attracts section 22(c) of the NDPS Act. 4. As to the facts in brief, on 12.3.2020 a team of ANC police personnel had been on the general patrolling. That night they received information during their rounds that the applicant had been trying to sell some contraband and deliver it to the prospective customer between 2.30 and 3.00 am. As the information was sudden and unexpected, they did not have the time to comply with the statutory mandate under Section 42 of the NDPS Act. 5. Therefore, they proceeded to the applicant's residence and apprehended him in his house with about 400 tablets of the substance on the table, believably, kept ready to be delivered. This happened at 2.25 am, on 12.3.2020. The crime registered, the applicant was arrested and then sent in judicial remand. 6. As it turns out, when the police seized the contraband, they conducted the field test on a few tablets and found them to be ecstasy, which is a prohibited substance. Statutorily speaking, though 10 gms is a commercial quantity, all the 400 and odd tablets weighed over 185 gms. Thus, the contraband was treated as a commercial quantity. On 5 September 2020, the police chargesheeted the applicant. His initial attempts before the trial Court having failed, the applicant has filed this application for regular bail. Submissions: Applicant in LD-VC-BA-76-2020: 7. Ms Caroline Collasso, the learned counsel for the applicant, has advanced elaborate arguments, much of which is technical. And technicality plays no small role in law - agreed. On 5 September 2020, the police chargesheeted the applicant. His initial attempts before the trial Court having failed, the applicant has filed this application for regular bail. Submissions: Applicant in LD-VC-BA-76-2020: 7. Ms Caroline Collasso, the learned counsel for the applicant, has advanced elaborate arguments, much of which is technical. And technicality plays no small role in law - agreed. (a) Incomplete Chargesheet: 8. Ms Collasso's principal plank of argument is that though the police filed the chargesheet, it is incomplete. And an in complete chargesheet cannot be treated as sufficient compliance with the statutory mandate under Section 36A (4) of the NDPS Act, which is analogous to Section 167 of Cr. PC. 9. To elaborate, Ms Collasso has submitted that the courts have repeatedly held that only to defeat the statutory deadline under either provision referred to above, the police file the chargesheet without the necessary particulars or necessary material. It must then be rejected as incomplete, lest it should amount to fraud on the statute or the Constitution. After reading out both section 167 Cr. PC and section 36A(4) of the NPDS Act, Ms Collasso has submitted that under section 167 of Cr.P.C. the maximum time for filing the charge sheet in grave offences is 90 days; under NDPS Act, it is 180 days: six months. 10. In other words, the police have sufficient time to complete the investigation and to file the chargesheet with all the details and the documents. Ms Collasso has pointed out that omitting every minute detail, indeed, cannot render the chargesheet incomplete. But any vital piece of information or document is missing, that will certainly affect the trial, including the charge being framed. (b) Absence of Scientific Analyses: 11. Ms Collasso has, as her second plank, stressed that the fulcrum of the crime under NDPS Act is the nature of the drug. Unless the prosecution places sufficient scientific evidence on record in the chargesheet, the trial Court can frame no charge. Then, that vital piece of scientific information missing, the chargesheet ought to be treated as incomplete. To support her contentions, Ms Collasso has relied on Sunit Vasantrao Phulbande v. State of Maharashtra, (2002) 3 MhLJ 689 Gaunter Edwin Kircher v. State of Goa, (1993) AIR SC 1456 and Ajit Singh alias Jeeta v. State of Punjab, (P & H High Court, decided on 30.11.2018). 12. To support her contentions, Ms Collasso has relied on Sunit Vasantrao Phulbande v. State of Maharashtra, (2002) 3 MhLJ 689 Gaunter Edwin Kircher v. State of Goa, (1993) AIR SC 1456 and Ajit Singh alias Jeeta v. State of Punjab, (P & H High Court, decided on 30.11.2018). 12. When the Court queried about the field testing the police have subjected the contraband to, Ms Collasso has submitted that field testing is only an ad hoc measure, and it is not a foolproof method of testing. Nor are the police an independent agency having the requisite scientific knowledge to establish that the contraband answers the description the police wanted to give to it. Besides, she has also contended that the field testing does not reveal the type of test or analysis, much less the details of the contraband's chemical composition. Therefore, according to her, field testing is no substitute for the FSL report. 13. In continuation of her submissions, Ms Collasso has also submitted that there have been a host of judgments from this Court and the Supreme Court that the entire contraband must be subjected to scientific scrutiny. If only a part of it is has been tested, the crime should be confined to the quantity tested but not to the residue left out. So she contends that when there are over 400 tablets allegedly found in the applicant's house, only one or two tablets were subjected to the field test. That means, the quantity of the contraband must be reckoned based only on those tablets tested. Then, it is a small quantity. In this regard, she has relied on Yaniv Cohem v. State of Goa, (in Criminal Appeal No.16/2003, decided on 5.12.2003) Rajesh Jagdamba Avasthi v. State Of Goa, (2005) 9 SCC 773 and Rajesh Jagadamba Avasthi v. State of Goa, (in Criminal Appeal No.148/1999). 14. Lastly Ms Collasso has drawn my attention to the Supreme Court's judgment in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590 . It is to underline the delays that occur in the prosecution's securing the FSL report and how, in effect, those delays affect the accused's rights. According to her, though State of Goa represented to the Supreme Court seven years ago that it would have an FSL laboratory for itself, so far it has not established one. It is to underline the delays that occur in the prosecution's securing the FSL report and how, in effect, those delays affect the accused's rights. According to her, though State of Goa represented to the Supreme Court seven years ago that it would have an FSL laboratory for itself, so far it has not established one. In fact, the State of Goa depends on laboratories in other States, and that inevitably delays, Ms Collaso points out, the investigation, the trial, and the speedy delivery of justice, too. As a result, the suspects languish in jail for long years. Therefore, as it is a matter of a suspect's fundamental right involving his individual liberty, she wants the Court to take a strict view and treat the chargesheet without the FSL report as incomplete, thus, falling foul of section 36A (4) of the NDPS Act. Prosecution: 15. Shri M. Amonkar, the learned Additional Public Prosecutor, in response has submitted that the issue of incomplete chargesheet has been agitated on numerous occasions earlier and has been squarely answered by this Court and the Supreme Court. To elaborate, he submits that if there is a field test, but FSL report is awaited, the chargesheet that has been filed in the meanwhile does not suffer the stigma of incompleteness. To support his contentions, he has relied on these judgments: (i) Rafael Garcia Versus Union of India, Criminal Application No.2015 of 2018 (ii) State of Haryana Versus Mehal Singh & Anr., (1978) CriLJ 1810 (iii) CBI Versus R.S. Pai, (2002) 5 SCC 82 (iv) Dinwah Dalmia Versus CBI,2007 8 SCC 700 and (v) Mr. Mural Tas Versus State of Goa, LD-VC-BA-48-2020. 16. Referring to the judgment the applicant's counsel has relied on -Yaniv Cohen, Criminal Appeal No.16 of 2003 and Gaunter Edwin Kircher, (1993) AIR SC 1456-the learned Additional Public Prosecutor submits that those two judgments no longer survive. According to him, with the Government's later notification under Section 2 of the Act, the judgments' statutory base has disappeared. So, those judgments are no longer relevant. In the end, he has however submitted that all the pleas, now the applicant has raised, are matters of trial and if at all they are legally sustainable, the applicant may take advantage of them during the trial. Thus, he has urged this Court to dismiss the application. Reply: 17. So, those judgments are no longer relevant. In the end, he has however submitted that all the pleas, now the applicant has raised, are matters of trial and if at all they are legally sustainable, the applicant may take advantage of them during the trial. Thus, he has urged this Court to dismiss the application. Reply: 17. In reply, Ms Caroline Collasso, the learned counsel for the applicant, has submitted that the notification under Section 2 only concerns the mixture or the combination of drugs. It has nothing to do with the quantity or the need for the police to weigh the entire substance rather than a part of it. Therefore, she submits that those judgments still hold the field. She has also submitted that the judgments the prosecution has cited now have not considered vital aspects about the incompleteness of the chargesheet. According to her, those judgments do not advert to the field test's impact; nor do they deal with the nature of the test or the chemicals used in testing. Besides, it is the police that do the testing, and this aspect has missed the Court's attention in those judgments. So, she insists that if at all those judgments have any relevance, they require reconsideration. LD-VC-BA-77-2020: Applicant: 18. Shri K. Poulekar, the learned counsel for the applicant in LDVC-BA-77-2020, has adopted the arguments advanced by the applicant's learned counsel in LD-VC-BA-76-2020. He has also submitted that all the documents describe the substance as 'narcotic drug suspected as LSD'. In this context, Shri Poulekar explains that the prohibited substances under NDPS Act are classified into three categories: narcotic drugs, psychotropic drugs, and manufactured drugs. LSD as per the schedule is a psychotropic substance-not a narcotic drug. Therefore, the description 'narcotic drug suspected as LSD' is a contradiction in terms. 19. Shri Poulekar also points out that to determine whether a given quantity is minimal, variable, or small, each of the three substances has a different standard. If it is a narcotic drug, at least a minimum of 1 kg must be the commercial quantity. But LSD, as a psychotropic substance, will be treated as commercial quantity if it weighs just 0.1 gm. So, the police concluding that what they found was narcotic substance but suspected it to be LSD is an impermissible incongruity. 20. If it is a narcotic drug, at least a minimum of 1 kg must be the commercial quantity. But LSD, as a psychotropic substance, will be treated as commercial quantity if it weighs just 0.1 gm. So, the police concluding that what they found was narcotic substance but suspected it to be LSD is an impermissible incongruity. 20. If the police's conclusion that the substance was a narcotic drug is accepted, unless it weighs a minimum 1 kg, it cannot be treated as commercial quantity. Then, according to Shri Poulekar, admittedly the substance found was 12 sheets of perforated paper. If LSD has been infused into those papers as droplets, the papers themselves are not the substance required to be mixed with LSD to be treated as part of the drug and to be weighed as a whole. The paper, he stresses, is only a container rather than a mixture of the drug. It is then essential for the prosecution to determine the net weight of the alleged substance, that is LSD. Here, until now, that process has not been completed. That means the prosecution has no means of knowing the substance's net weight and, thus, determine whether it is a commercial quantity or otherwise. For this purpose, according to Shri Poulekar, the chemical analysis is indispensable. In its absence, the whole chargesheet stands vitiated. Then, the benefit of the doubt should go to the applicant. 21. On the third count, Shri Poulekar has drawn my attention to Section 46 of CrPC. Here the applicant is a woman. According to him, the police had not followed safeguards provided under that section before they arrested the applicant. In this context, he draws my attention to the FIR and the station diary as incorporated in the chargesheet. It highlights that the raiding party left soon after midnight, that is, at 12.01 am on 13th (morning). The whole raid was completed by 5.45 am. In other words, a woman had been arrested before sunrise in her house without a policewoman and without the Judicial Magistrate's leave, too. Therefore, the arrest stands vitiated and, consequently, even the detention becomes illegal. The whole raid was completed by 5.45 am. In other words, a woman had been arrested before sunrise in her house without a policewoman and without the Judicial Magistrate's leave, too. Therefore, the arrest stands vitiated and, consequently, even the detention becomes illegal. Shri Poulekar has relied on Kavita Manikikar of Mumbai v. Central Bureau of Investigation BS & FC & Ors to support his contention., [Writ Petition No.1142 of 2018] Bharati S. Khandhar v. Maruti Govind Jadhav, [Writ Petition No.453 of 2018] Vineela Tilak v. Suhasane, Assistant Collector of Customs, (1997) 2 MhLJ 337 Lawarance DSouza v. State of Maharashtra, (1992) CriLJ 399, and Hitesh Hemant Malhotra v. State of Maharashtra, [High Court of Bombay, decided on 07.12.2020]. So, the learned counsel urges this Court to consider the applicants' bail application in the light of the above legal proposition and the incontrovertible factual scenario, as he puts it. Prosecution: 22. Shri Amonkar, the learned Additional Public Prosecutor, has submitted that there is no doubt about the nature of the substance because of the field test. As to the net weight, the FSL report is awaited. According to him, it is a settled proposition of law that the delay in securing the FSL report should not earn a reprieve for the accused in serious crimes affecting society. And drug pedalling is pernicious. 23. As to the time of arrest, Shri Amonkar, too, has taken me through the chargesheet-especially the station diary-and pointed out that the crime was registered at 7.30 am. That means the arrest may have taken place after the sunrise on 13th. For proper arrest takes place only after a crime has been registered. Therefore, the rigours of Section 46 of Cr.P.C. do not apply. Reply: 24. In reply, Shri Poulekar, the learned advocate, has pointed out that in FIR para three clearly mentions that before 5.40 in the morning the police officer explained to the applicant the grounds of arrest and took her into custody. Therefore, the arrest got completed, and the formalities may have been completed later. 25. Heard Ms Caroline Collasso, the learned counsel for the applicant in LD-VC-BA-76-2020; Shri K. Poulekar, the learned counsel for the applicant in LD-VC-BA-77-2020; and Shri Mahesh Amonkar, the learned Addl., Public Prosecutor. Discussion: The Details of the Two Cases: Details Aleksander Kurganov Arshiya Anjum Case before HC LD-VC-BA-76-2020 LD-VC-BA-77-2020 Crime Number Cr. No.7/2020 Cr. 25. Heard Ms Caroline Collasso, the learned counsel for the applicant in LD-VC-BA-76-2020; Shri K. Poulekar, the learned counsel for the applicant in LD-VC-BA-77-2020; and Shri Mahesh Amonkar, the learned Addl., Public Prosecutor. Discussion: The Details of the Two Cases: Details Aleksander Kurganov Arshiya Anjum Case before HC LD-VC-BA-76-2020 LD-VC-BA-77-2020 Crime Number Cr. No.7/2020 Cr. No.46/2020 Police Station Anti-Narcotic Cell Anjuna PS Date of Arrest 12.03.2020 12.03.2020 Offence Under Under Section 22 (c) of NDPS Act. Under Sections 22 (c) and 20 (b) (ii) (A) of NDPS Act Suspected Substance 400 tablets of ecstasy (1) 17.4 gms of LSD (2) 6.2 gms of Charas Quantity Commercial (1) Commercial (2) Non-commercial Type of Test Field Test Field Test Chargesheet Filed On 5.9.2020 On 4.9.2020 Forensic Laboratories and the Executive Inaction: 26. Indeed, the applicants' counsel have emphasised the State's insouciant or laidback approach to establishing a Foresnsic Laboratory here. According to them the State's action contradicts and belies their promise to the Supreme Court in Thana Singh. Let us examine this decision. 27. For an offence under the NDPS Act, the appellant was arrested and remanded in judicial custody. His repeated applications for bail were dismissed. He had been languishing in prison for over 12 years, awaiting trial. The maximum sentence for the offence being 20 years, the Supreme Court has held that the appellant has already served over 50% of the maximum sentence. In that process, the Apex Court has issued certain directions. But we will refer to those that are relevant for our purpose. In essence, Thana Singh stressed the singular importance of the speedy trial. As to the narcotics labs, it has underlined their role in effectively implementing the NDPS Act's mandate. It mandated that "every state or region must have proximate access to these laboratories", so that samples may be sent timely for scrutiny. "These samples often form primary and clinching evidence for both the prosecution and the defence, making their evaluation by narcotics laboratories a crucial exercise". 28. Thana Singh has also directed the Center to ensure equal access to CFSLs from different parts of the country. Besides the three in the pipeline, the Center must establish more CFSLs. Several states possess no infrastructure to facilitate analysis of samples and are compelled to send them to laboratories in other parts of the country for scrutiny. 28. Thana Singh has also directed the Center to ensure equal access to CFSLs from different parts of the country. Besides the three in the pipeline, the Center must establish more CFSLs. Several states possess no infrastructure to facilitate analysis of samples and are compelled to send them to laboratories in other parts of the country for scrutiny. Therefore, "each state is required to establish state-level and regional-level forensic science laboratories". However, the decision about the numbers of such laboratories would depend on the backlog of cases in the state. 29. The Court does emphasise the need for the FSL in the State. Its assurance to the Apex Court was many years ago. But nothing seems to have happened after that. The tardiness tarnishes the State's image and affects the fundamental rights of the accused. But the FSL's absence in this State does not affect these cases' outcome. So I close that issue with an adjuration to the State to pay attention to that crying need. The Questions Before Us: (I) Does a chargesheet without FSL Report in a crime under NDPS Act remain incomplete, attracting Section 36A (4) of the Act? (II) Do the findings of a 'field test' suffer evidentially because the test is by the police, not an independent agency, besides being untrained? (III) If only a part of the contraband has been tested, can the prosecution treat the entire substance as tested for determining the quantity? (IV) Does a woman's arrest stand vitiated and earn a release on bail if the police violate section 46 of CrPC? Discussion: I. Does a chargesheet without FSL Report in a crime under NDPS Act remain incomplete, attracting Section 36A (4) of the Act? 30. Let us see what section 36A (4) of the NDPS Act lays down. [S. 36A. Offences triable by Special Courts.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- . . . Discussion: I. Does a chargesheet without FSL Report in a crime under NDPS Act remain incomplete, attracting Section 36A (4) of the Act? 30. Let us see what section 36A (4) of the NDPS Act lays down. [S. 36A. Offences triable by Special Courts.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- . . . (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 thereof to "ninety days", where they occur, shall be construed as a reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. (italics supplied) 31. Ideally, police should complete the investigation in 24 hours-an ideal, I stress. No Magistrate, however, shall authorise the detention of the accused in custody beyond ninety days, where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years. Once this period expires, the accused person shall be released on bail if he is prepared to and does furnish bail. This is a default bail. Section 67A (4) of the NDPS Act modifies this time frame. For an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity, the police must file the chargesheet-that is, they should complete the investigation-in 180 days. Beyond this period, the accused earns a default bail. 32. Indeed, the courts have often deprecated the police adopting a devious practice of performing a perfunctory investigation and filing an incomplete chargesheet as if they had completed the investigation. It is to get over the timeframe. So the courts reject incomplete chargesheets and allow the accused to have the default bail. Of course, the proviso to section 36A (4) extends this timeframe to 180 days. It is to get over the timeframe. So the courts reject incomplete chargesheets and allow the accused to have the default bail. Of course, the proviso to section 36A (4) extends this timeframe to 180 days. Suppose the police could not complete the investigation in 180 days; in that case, the Special Court may extend the period up to one year on the Public Prosecutor's application showing specific reasons for the accused's detention beyond 180 days. Here, the petitioners contend that to get over the time constraint, the police have filed an incomplete chargesheet. 33. The chargesheet is incomplete because it does not contain a very vital document: the FSL Report or the Chemical Analysis Report. Is the chargesheet incomplete? Let us see. 34. First, we will begin with the procedural imperative. This Court has held in Lawarance D'Souza that when the accused have been languishing in jail with an allegation of a grave offence, absolute compliance with the procedure is a sine qua non. 35. In Lawarance D'Souza, the petitioner was arrested under sections 8, read with 21 and 29, of the NDPS Act, as he allegedly possessed brown sugar. The petitioner pleaded false implication; he also complained about the police violating section 50 of the NDPS Act. When the petitioner applied for bail, this Court, per M.G. Chaudhari, J, has observed that 'panchnama' and statement made by 'panchas' cannot be relied upon in the absence of any other corroborative material. According to it, the prosecution has not satisfactorily explained the violation of section 50 of the Act. 36. As to applying sections 41 to 58 of the Code at the pre-trial stage of the crime, Lawarance D'Souza has observed that the provisions would be applicable right from the inception of the investigation. It would be fallacious and pernicious to leave the question of their compliance to be looked into only at the stage of the trial. Such a situation is fraught with the danger of the prosecution agency ignoring with impunity the provisions which contain in-built safeguards to the accused. That would bring into peril the citizen's liberty guaranteed under Art. 21 of the Constitution. 37. Such a situation is fraught with the danger of the prosecution agency ignoring with impunity the provisions which contain in-built safeguards to the accused. That would bring into peril the citizen's liberty guaranteed under Art. 21 of the Constitution. 37. Lawarance D'Souza has further observed that any lenient approach in applying those mandatory provisions to the crime at all stages would enable the officers to exercise their powers-and, indeed, very vast powers vested in them under the Act-in an untrammelled and arbitrary manner. "The accused therefore should be entitled to rely upon the infirmities with all its rigour even at the stage of bail". Lawarance D'Souza has poignantly pointed out that it would be cruel for anyone to tell a person that you may have been arrested because officers of the Cell say that you have committed the offence. And no matter even if we have violated the provisions of law, you must, fist, languish in jail for several years before you establish prejudice at the trial. In other words, the burden under sections 54 and 35 of the NDPS Act would shift upon the accused only after the prosecution discloses, prima facie, that he is guilty. 38. Now, we will examine what amounts to an incomplete chargesheet. 39. In Sunit Vasantrao Phulbande, the applicants were arrested for the offences under NDPS and remanded in judicial custody. Investigation completed, the police charge-sheeted them. But they filed the chargesheet without enclosing the documents contemplated under Section 42 of the Act, as well as Chemical Analyser's report. In fact, they filed the chemical analysis report much later. 40. The question before this Court was whether the mere filing of a charge-sheet within the prescribed time, unaccompanied by material papers as contemplated under Section 173(5) of the Code, renders it incomplete. If it does, will it confer on the accused the right to be released on bail under Section 167(2) of the Code? 41. This Court, per D. D. Sinha J, has held that the chemical analyser's report is the foundation for the Magistrate to take cognisance of the offence. Until the sample drawn from the seized contraband confirms the suspicion that it is a particular prohibited substance, the Magistrate cannot take cognisance of the offence. That is, the chargesheet/report, as contemplated under Section 173(5) of the Code, should be such as to enable the Magistrate to take cognisance. Until the sample drawn from the seized contraband confirms the suspicion that it is a particular prohibited substance, the Magistrate cannot take cognisance of the offence. That is, the chargesheet/report, as contemplated under Section 173(5) of the Code, should be such as to enable the Magistrate to take cognisance. If we accept this proposition, the documents which are required to be accompanied the charge-sheet assume importance. And without those documents, the chargesheet renders itself incomplete. 42. The filing of charge-sheet by the police in the Court, Sunit Vasantrao Phulbande stresses, must fulfil Section 173(2) and (5) of the Code. And it is only after such compliance can the chargesheet be treated as complete. Sunit Vasantrao Phulbande accepts that not every document is essential, and the police's failure to produce inessential documents with the chargesheet will not render it incomplete. But the chemical analyser's report alone will determine whether the NDPS Act is attracted. Thus, Sunit Vasantrao Phulbande concludes that without the chemical analyser's report, the chargesheet is incomplete, and an incomplete chargesheet attracts section 167 (2) of the Code. That is, the accused, as a matter of right, earns default bail. 43. Sunit Vasantrao Phulbande holds in the petitioners' favour. It has precedential value, too. 44. In Ajit Singh, the police submitted the report under section 173 (2) of Cr PC., without FSL report for an offence under the NDPS Act. They did not ask from the court for an extension of time to submit that the FSL report under Section 36A (4) of the NDPS Act. The question was whether the report under section 173 (2) Cr.P.C., amounts to an incomplete challan. If it is so, is the accused entitled to bail under Section 167(2) Cr.P.C.? 45. A Division Bench of the High Court of Punjab & Haryana has noted that the Legislature, evidently, has envisioned various sorts of offences under the Act and so prescribed different periods of investigation. That "it grants an immense flexibility of period to the investigation" acknowledges the probability of the investigation not getting completed given the investigative complexities. It is for this reason that 180 days has been provided to the investigating agency in the first instance with powers to the Special Court to extend it up to one year on the public prosecutor's report disclosing specific reasons for the delay. 46. It is for this reason that 180 days has been provided to the investigating agency in the first instance with powers to the Special Court to extend it up to one year on the public prosecutor's report disclosing specific reasons for the delay. 46. According to Ajit Singh, to the police report, the Magistrate ought to apply his mind and see whether it discloses the commission of an offence. Under the NDPS Act, this would revolve around the prosecution establishing contraband possession, its nature, content, and extent. Ajit Singh declares that it is a great fallacy to believe that one could identify the contraband "through the naked eye, inspection based on experience and knowledge". The crime becomes cognisable under the NDPS Act only when the prosecution establishes "the nature of contraband based on the Chemical Examiner's report". And for this reason, the Chemical Examiner's report assumes an immense significance for the trial Court. 47. That is, non-inclusion of the Chemical Examiner's opinion in the report under Section 173 Cr.P.C. would expose the accused to unfounded dangers imperilling and endangering his liberty since the provisions of the NDPS. Act in its applicability to a trial and conclusion are stringent in consequence. So the Chemical Examiner's report must be included in the report under Section 173 Cr.P.C., and without that, it can be termed an incomplete challan. Beyond 180th day, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of the investigation status with a prayer for extension of time to the Court's satisfaction. 48. Ajit Sing, too, goes in the petitioners' favour. True, it has only persuasive value. 49. Rafael Palafox Garcia, a later co-equal Bench decision of this Court, seems to have taken a contrary view to Sunit Vasantrao Phulbande. 50. In Rafael Palafox Garcia, the applicant contended that the prosecution filed the chargesheet in 60 days, but that chargesheet was incomplete because it was not accompanied by the documents contemplated under section 173 (5) of Cr PC. So what the prosecution filed could not be treated as chargehseet. So he wanted the Court to release him on bail-a default bail at that under section 167(2) of the Code. So what the prosecution filed could not be treated as chargehseet. So he wanted the Court to release him on bail-a default bail at that under section 167(2) of the Code. Then, the question before this Court was whether the mere filing of chargesheet within the prescribed time, unaccompanied by material papers as contemplated under section 173(5), amounts to sufficient statutory compliance. 51. In answer, this Court, per V. K. Tahilramani J, first, examined a few precedents and noted that in those decisions, the chargesheet contained neither the CA Report nor the on-the-spot field-test-kit report. But in Rafael Palafox Garcia, the field test report was available, as is the case here. So, the Court has held that the charge-sheet submitted to the trial Court contained material which was sufficient for it to proceed further and take cognisance. It has also observed that though the investigating officer is required to produce all the relevant documents when he submits the charge-sheet, at the same time there is no specific provision that prohibits him from submitting additional documents later. To be specific, "the prosecution is not precluded from filing any additional material like the CA report at a later stage. Filing of CA report has not changed the nature of the offence or the charge-sheet". 52. Rafael Palafox Garcia tellingly concludes that "even though the report of the CA was not filed, it cannot be said that an incomplete charge-sheet has been filed". 53. On Rafael Palafox Garcia's lines is the Punjab & Haryana High Court's Full Bench decision in Mehal Singh. In that case, the question was whether an investigation of an offence would be considered complete in terms of Section 173(2) of Cr. PC, although police officer investigating case had not received reports of such experts as chemical examiner, serologist, ballistic expert, or fingerprint expert. In other words, whether a charge sheet minus those documents, when submitted to a Magistrate, would be termed a police report under section 190(1)(b) of the Code that enables the Magistrate to take cognisance of the offence disclosed in that report. 54. The Full Bench has held that a report to be qualified as a 'police report' need contain only such facts as mentioned in section 173(2) of the Code. So, if once it was found that the police report contained all those facts, it amounted to sufficient compliance. 54. The Full Bench has held that a report to be qualified as a 'police report' need contain only such facts as mentioned in section 173(2) of the Code. So, if once it was found that the police report contained all those facts, it amounted to sufficient compliance. That accepted, the accused would be on a weaker ground in canvassing that the chargesheet which did not include the expert's report would not be a complete police report as envisaged in section 173(2) of the Code. According to Mehal Singh, even if the investigating officer has not received the expert's report, his job of collecting of evidence ends the moment he dispatches material for the expert's opinion and incidentally cites him as a witness. 55. Now, let us examine a Supreme Court judgment. In R. S. Pai, the question concerns the prosecution producing additional documents after its filing the chargesheet. Is it permissible? A three-Judge Bench of the Supreme Court has held that from section 173 (5) of the Code, it is apparent that normally the IO is required to produce all the relevant documents when he submits the chargesheet. But it cannot be held that the IO cannot produce additional documents subsequently, for there is no statutory prohibition. It is always open for the IO to produce additional documents with the court's leave. 56. The word 'shall' used in sub-section (5), according to R. S. Pai, cannot be interpreted as mandatory but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate. But if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Further, the scheme of sub-section (8) of section 173 also clarifies that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded, then there is no question of the court's not permitting the prosecution to produce additional documents gathered before or after investigation. In such cases, there can be no prejudice to the accused. 57. Now comes another Supreme Court judgment: Dinesh Dalmia. In a crime that attracts sections 409, 420, and 120B of IPC, CBI completed the investigation and charge-sheeted the accused in terms of section 173 (2) of the Code. In such cases, there can be no prejudice to the accused. 57. Now comes another Supreme Court judgment: Dinesh Dalmia. In a crime that attracts sections 409, 420, and 120B of IPC, CBI completed the investigation and charge-sheeted the accused in terms of section 173 (2) of the Code. By then, the appellant had been at large and evaded arrest, which prompted the Magistrate to issue an NBW. Although CBI filed much material with the charge sheet, it could not file a few documents sent for examination to the Government Examiner of Questioned Documents (GEQD). Based on the chargesheet, the Magistrate took cognisance of the offence. 58. After the applicant's arrest, the Magistrate granted police custody, which was extended a couple of times. Eventually, the applicant was remanded in judicial custody. 60 days after his arrest, the appellant applied for the statutory or default bail under section 167 (2) of the Code. It was on the premise that no further charge sheet regarding the investigation under section 173 (8) had been filed. Pending that application, the CBI sought for his remand in judicial custody under section 309 (2) of the Code. 59. The Supreme Court, per S. B. Sinha J, has held that a charge sheet is a final report within the meaning of section 173 (2) of the Code. It is filed to enable the court concerned to apply its mind as to whether cognisance of the offence should be taken or not. The report is ordinarily filed in a prescribed form. One requirement for submission of a police report is whether any offence appears to have been committed and, if so, by whom. Sometimes, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. Suppose the investigating officer finds sufficient evidence even against such an accused absconding. There, the law does not require that filing of the charge sheet must await the arrest of the accused. 60. Dinesh Dalmia goes on to observe that the power of the investigating officer's to investigate further under section 173 (8) of the Code is not taken away only because a charge sheet under Sub-section (2) thereof has been filed. There, the law does not require that filing of the charge sheet must await the arrest of the accused. 60. Dinesh Dalmia goes on to observe that the power of the investigating officer's to investigate further under section 173 (8) of the Code is not taken away only because a charge sheet under Sub-section (2) thereof has been filed. A further investigation is permissible even if the Magistrate has taken cognisance of the offence. Then, Dinesh Dalmia acknowledges that the investigating agency is required to complete the investigation within a reasonable time; the ideal period is 24 hours. But in some cases, it may not be practically possible for the investigating agency to do so. The Parliament, therefore, thought it fit that the accused could be remanded pending investigation. That said, if the investigation is not completed within the stipulated period, it entitles the accused to apply for bail, subject to certain conditions. 61. Then, Dinesh Dalmia notes that such a right of bail is a valuable right, but it is a conditional one-the condition precedent being pendency of the investigation. Whether an investigation, in fact, has remained pending and the investigating officer has submitted the chargesheet only to curtail the right of the accused would essentially be a question of fact. On facts, Dinesh Dalmia has observed that such a question strictly does not arise in that case because, according to the CBI, sufficient material has already been available for the appellant's prosecution. In this regard, Dinesh Dalmia distinguishes between section 167 (2) and section 309 (2) of the Code as to the remand of the accused. Section 167 (2) applies where cognisance has not been taken; section 309 (2) applies where cognisance has been taken. 62. Dinesh Dalmia has concluded that the accused can benefit from proviso to sub-section (2) of section 167 of the Code if the chargesheet is not filed. But once a charge sheet is filed, that right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of section 173 of the Code. 63. But once a charge sheet is filed, that right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of section 173 of the Code. 63. In the context of forensic expert's report on a questioned document which forms the foundation for an offence under section 420 IPC, Dinesh Dalmia has specifically held that "there may be a delay to receive an opinion from experts and such delay cannot be taken advantage of by invoking the proviso to Section 167, Cr. PC". 64. In Murat Tas, this Court, once again, considered the absence of FSL Report and the efficacy of Spot Test. One argument was that the prosecution placed no scientific material on record to determine the substance as contraband, leaving alone as MDMA. This Court, then, has noticed that in a couple of decisions the applicant relied on, no spot test was conducted. Besides, before the period prescribed under section 167(2) -the default bail period-the prosecution could not place on record the CFSL report to establish the substance's nature. Here, on the contrary, ANC tested the substance on the spot. And it was said to be MDMA. "About the correctness of the test, we cannot rule at this stage. On the converse, once the record bears out the fact that a test has been conducted, we ought to presume under section 114(g) of Indian Evidence Act that it has been conducted in accordance with the law". Which One Should Prevail: Sunit Vasantrao Phulbande or Rafael Palafox Garcia? 65. Sunit Vasantrao Phulbande was rendered in 2002, Rafael Palafox Garcia in 2007. Both are by co-equal Benches. On a closer reading, Rafael Palafox Garcia has relied on Dinesh Dalmia and R. S. Pai of the Supreme Court to hold that it is open to the investigating agency to file further documents even after the charge-sheet has been filed. On facts, it has noted that samples in question were tested on the spot and on testing the report showed that the material was Pseudo-ephedrine, which is a controlled substance. It observes: When the charge-sheet was filed on 13-2-2008, it contained all necessary material as contemplated under Section 173(5) of Cr.P.C. and the prosecution is not precluded from filing any additional material like the CA report at a later stage. It observes: When the charge-sheet was filed on 13-2-2008, it contained all necessary material as contemplated under Section 173(5) of Cr.P.C. and the prosecution is not precluded from filing any additional material like the CA report at a later stage. Filing of CA report has not changed the nature of the offence or the charge-sheet. Thus, there was sufficient material to connect the accused with the offence, and there was sufficient material before the Court on 13-2-2008 to take cognisance of the offence. In the present case, even though the report of the CA was not filed, it cannot be said that an incomplete charge-sheet has been filed and hence the learned Magistrate could not have taken cognisance. Looking to all these facts, I am of the opinion that the applicant is not entitled to bail under the provisions of Section 167(2) of Cr. PC. 66. Faced with a decisional cleavage, the principles of precedent do not allow me to choose one over the other; it must get resolved by a Bench of superior numeric strength. But that is obviated here. The ratio of Dinesh Dalima obviates that need. It holds that mere absence of a forensic report does not vitiate a chargesheet. Nor should it be treated as an incomplete one. So, the petitioners' plea on this count must fail. And it has failed. (II) Do the findings of a 'field test' suffer evidentially because the test is by the police, not an independent agency, besides being untrained? 67. In Gaunter Edwin Kircher, the police found a German national with a polythene pouch. That pouch contained "tobacco, one cigarette paper packet, and two cylindrical pieces of [what was believed to be] Charas". The two pieces of Charas were weighed and found to be 7 gms. and 5 gms. One of the two pieces weighing less than 5 gms. was sent for chemical analysis and the other piece weighing 7 gms. (not even a part of it by way of the sample) was sent for chemical analysis. 68. Before the Supreme Court, to have the conviction overturned, the appellant argued that only a small quantity, that is less than 5 gms., had been sent for analysis. The remaining part of the substance, not sent for analysis, cannot be held to be Charas in the absence of any expert evidence. But the State has argued the other piece of 7 gms. The remaining part of the substance, not sent for analysis, cannot be held to be Charas in the absence of any expert evidence. But the State has argued the other piece of 7 gms. also was recovered from the accused's possession, and there was no need for the prosecution to send the entire quantity for chemical analysis. And "the fact that one of the pieces has been found to contain Charas, the necessary inference would be that the other piece also contained Charas". 69. Repelling the State's contentions, Gaunter Edwin Kircher has held that only one piece was sent for chemical analysis, and it was found to be less than 5 gms. "From this report alone, it cannot be presumed or inferred that the substance in the other piece weighing 7 gms. also contained Charas". According to Gaunter Edwin Kircher, the Act applies to certain narcotic drugs and psychotropic substances and not to all kinds of intoxicating substances. So, in the absence of positive proof that both the pieces recovered from the accused contained Charas, "it is not safe to hold that 12 gms. of Charas was recovered from the accused". Then, their Lordship in Gaunter Edwin Kircher has noted that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law. (italics supplied) 70. I am afraid Gaunter Edwin Kircher may not help the applicants. It has not laid down any invariable principle that the whole quantity should be sent for chemical analysis. According to it, the authorities "would do better if they send the entire quantity seized". In the same breath, it has also felt that if it is not practicable for the authorities to send the entire quantity, they should send "sufficient quantity by way of samples from each of the packets or pieces recovered". Here, unlike Gaunter Edwin Kircher, the substance is either one indivisible lot or so homogenous that there practically existed no distinction even if the substance was found in tablets. Here, unlike Gaunter Edwin Kircher, the substance is either one indivisible lot or so homogenous that there practically existed no distinction even if the substance was found in tablets. And all the tablets were found in the same container. 71. In Yaniv Cohem, the panchanama recited that P.W.5, a panch, found a polythene bag containing white tablets on the right-hand side corner of the room. P.W.4, the other panch, also stated that the bag was found in the right-hand side of the room. It contained tablets. So this Court concluded that the accused could be said to possess the seized drug. But the entire quantity of the drugs was not analysed; "only few tablets from each of the samples" were analysed. The analysis did not give the percentage of the drug found in the tablet. In this context, the appellant contended that in the absence of a qualitative analysis of the tablets, the Accused could not be convicted for an offence punishable under section 22 of the NDPS Act. He would, perhaps, be convicted for having possessed a small quantity of the drug. 72. Yaniv Cohen has noted that the analyst received one envelope containing two tablets in the above evidential background. Those two tablets weighed 0.3195 gms. From the second envelope containing 691 tablets, the analyst took only 50 tablets for analysis. Those 50 tablets weighed 8.1941 gms. Thus, he analysed tablets weighing 8.5136 gms. In the cross-examination, the analyst has admitted that he has "not carried out quantitative analysis" since he was not called upon to do so. The expert has also further admitted that "normally the tablets have bulk of binders such as starch or some other neutral ingredients and entire tablet is not a drug". He was not 100% certain whether all the balance tablets would test positive for amphetamine. 73. So Yaniv Cohen has held that the expert has admitted that tablets have a bulk of binders such as starch or some other neutral ingredients. It was incumbent for the prosecution to have requested a qualitative analysis. Based on the weight of the tablet, therefore, it would be held that the Accused had the drug corresponding to the weight of the tablet. Since only 50 plus 2 tablets were analysed, it cannot be said that the accused had the drug regarding the balance quantity of the tablets which were not analysed. Based on the weight of the tablet, therefore, it would be held that the Accused had the drug corresponding to the weight of the tablet. Since only 50 plus 2 tablets were analysed, it cannot be said that the accused had the drug regarding the balance quantity of the tablets which were not analysed. So it has held that the accused possessed only a small quantity of the drug. 74. To this day, in the case before me, there was no chemical analysis. The police only conducted a field test on the day when they seized the contraband. So at this juncture, it is premature for me to rule on the quantity. Rather, I must take the quantity stated as prima facie true. 75. In Rajesh Jagdamba Avasthi, the appellant was charged with having possessed Charas weighing 180.70 gms. He allegedly concealed the contraband in his shoes. The Charas recovered from the accused was packed and sealed in two envelopes. When those envelopes were opened in the laboratory by Junior Scientific Officer, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference was significant. As Rajesh Jagdamba Avasthi notes, there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The recovery proceeding's credibility is considerably eroded if it is found that the quantity actually found by the analyst was less than the quantity sealed and sent to him. The question, according to Rajesh Jagdamba Avasthi was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis. The prosecution could not explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. What follows? 76. Rafael Palafox Garcia has accepted that FSL or CA Report is not indispensable for a valid or complete chargesheet. The charges, at least, initially can be maintained on the strength of the Field Test Report. So, the above decisions, I reckon, cannot rescue the petitioners. Besides, at the pre-trial stage, when considering a bail application, we only form a prima facie view of the material on record, not a conclusive view. Nor can we reject any material untested. The charges, at least, initially can be maintained on the strength of the Field Test Report. So, the above decisions, I reckon, cannot rescue the petitioners. Besides, at the pre-trial stage, when considering a bail application, we only form a prima facie view of the material on record, not a conclusive view. Nor can we reject any material untested. Spot Test Report alone may be inadequate to carry the charge home, but that will suffice at the stage of investigation and filing of the chargesheet. (III) If only a part of the contraband has been tested, can the prosecution treat the entire substance as tested for determining the quantity? 77. In Hitesh Hemant Malhotra, when the applicant was searched, the police found on him 10 square pieces of papers containing LSD drops. Later, on the same day, when they searched the applicant's house, they recovered 13 pieces of brown colour papers each admeasuring 1/1 cm in size containing LSD drops. And they found 970 gms (570+400 gms) of charas, kept in the cupboard. In the above factual backdrop, the applicant has sought a regular bail on the grounds that quantity of contraband, LSD and charas, was less than the 'commercial quantity'. So he contended that rigours of section 37 of the NDPS Act do not apply. 78. In Hitesh Hemant Malhotra, this Court, per Sandeep K. Shinde, J. has, first, noted on the technical front that LSD is sold on the street in small tablets (microdots), capsules, or gelatin squares. In its pure state, LSD is a white, odourless substance. It is so potent that a small, effective dose of pure drug is virtually invisible. As a result, it is usually diluted in other materials. As the NDPS Act determines, It may be stated that, at serial no. 133 of the table appended to the Act, a small quantity of LSD is 0.002, whereas commercial quantity is 0.1 gms. And for charas, commercial quantity is 1 kg. 79. Hitesh Hemant Malhotra has further noted on facts that the total weight of 10 pieces of paper containing LSD drops, found on the applicant's person, was 140 milligrams. But the weight of 13 pieces of paper containing drops of LSD solution found in the applicant's house was nowhere mentioned. And for charas, commercial quantity is 1 kg. 79. Hitesh Hemant Malhotra has further noted on facts that the total weight of 10 pieces of paper containing LSD drops, found on the applicant's person, was 140 milligrams. But the weight of 13 pieces of paper containing drops of LSD solution found in the applicant's house was nowhere mentioned. Relying on the CA's report, the applicant argued that 'net' weight of the drops of LSD solution on the 23 papers was 0.4128 milligram, which is less than commercial quantity. 80. To appreciate whether the paper on which the LSD drops have been infused becomes an integral part of the drug, Hitesh Hemant Malhotra has examined Entry-239 of the Table and Footnote-(4) appended to the NDPS Act. Entry No. 239 and Footnote-(4) reads as under: 239. Any mixture or preparation that of with or without a neutral material, of any of the above drugs. Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture." "4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." 81. After appreciating the statutory position, Hitesh Hemant Malhotra has held that as the paper only carries the drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither "preparation", within the meaning of Section 2(xx), nor a "mixture" within the meaning of the NDPS Act. It has also held that the paper containing dried LSD drops of LSD solution, not being a mixture, and not being a neutral substance, its cannot be taken as an integral part of the drug. So, in the end, Hitesh Hemant Malhotra has held that as per CA's report, the net weight of LSD must be treated as small quantity. 82. So, in the end, Hitesh Hemant Malhotra has held that as per CA's report, the net weight of LSD must be treated as small quantity. 82. We must note that in Hitesh Hemant Malhotra, ten sheets of paper with infused LSD were found on the accused's person; thirteen more were found in his house. The police mentioned the weight of those found on the accused's person, not those found in his house. This is the first distinction. 83. Second, to answer the contention each tablet must be tested, I may note that if the tablets have been found in different lots, that argument holds good. If they have been found in one common container with identical features, it is idle to contend that every tablet must be subjected to field test or chemical analysis. This argument renders the practice of sending samples to chemical analysis unacceptable. 84. Here in the house of the petitioner in LD-VC-BA-76-2020, over 400 tablets were allegedly found; only a few tablets were subjected to the field test. And 30 tablets weighing 16.034 gms were sent to FSL. All the 400 tablets were found in one container as a common lot as we have already noted. Therefore, Hitesh Hemant Malhotra does not apply. 85. True, LSD is so potent that a small, effective dose of a pure drug is virtually invisible. It is a psychotropic substance. The petitioner in LD-VC-BA-77-2020 wants to take advantage of misdescription the police have given to the LSD as a narcotic drug in their report. I am afraid the contention is too technical to be accepted. Once the police have mentioned LSD by name, their calling it a narcotic drug does not vitiate the proceedings, for there is no variant of LSD which can also be called a narcotic drug with different characteristics. 86. The last argument about LSD is that the strips of paper themselves are not the substance required to be mixed with LSD. So they cannot be treated as part of the drug to be weighed as a whole. A corollary to this line of argument is that prosecution must essentially determine the alleged substance's net weight at the very beginning. Otherwise, the substance found must be treated as less than commercial quantity. 87. So they cannot be treated as part of the drug to be weighed as a whole. A corollary to this line of argument is that prosecution must essentially determine the alleged substance's net weight at the very beginning. Otherwise, the substance found must be treated as less than commercial quantity. 87. First, we must accept that LSD is the substance that cannot be consumed in its pure state; it is infused into, say, a piece of paper and dried as a droplet. The Field Kit cannot determine the net weight of the dried LSD on the sheets of paper. Only a chemical analysis can. Here, on facts, we may note that the LSD found weighed 17.4 gms, when the commercial quantity is 0.1 gram. Of course, 17.4 gms was the gross weight. In Hitesh Hemant Malhotra, this Court has on record the CA report. That report has altogether excluded a few strips of LSD papers found in the accused's house. Here that stage has not arrived at. And the police have accounted for all the strips they have seized. (IV) Does a woman's arrest stand vitiated and earn a release on bail if the police violate section 46 of CrPC? 88. Shri Poulekar has relied on section 46 of CrPC in LD-VC-BA77-2020, for the applicant is a woman. According to him, the police have not followed safeguards provided under that section before they arrested the applicant. Let us see what the law in on that aspect. 89. In Kavita Manikikar, the crime attracted section 120-B read with 420 of the IPC, and section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. The CBI arrested the petitioner, a woman, at 8 pm. Among other things, the petitioner contended that her arrest violated section 46 (4) of the Cr PC. CBI defended the procedure it had adopted. It asserted that she was summoned to its office for investigative purposes. Though she attended the investigation, accompanied by her husband; she did not cooperate. As there was a strong suspicion that she might abscond, the CBI arrested her. at 8 pm, by preparing a detailed arrest-cum-personal search memo. 90. We may note that section 46(4) mandates that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances. When exceptional circumstances do exist, only a woman police officer shall effect the arrest. at 8 pm, by preparing a detailed arrest-cum-personal search memo. 90. We may note that section 46(4) mandates that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances. When exceptional circumstances do exist, only a woman police officer shall effect the arrest. To do so, that woman officer must make 'a written report' and obtain the prior permission of the first class's jurisdictional Judicial Magistrate. 91. A Division Bench of this Court (per Bharati H. Dangre J) has noted that section 46 (4) of the Code, no doubt, carves out an exception. It requires the written permission from the Judicial Magistrate of First Class if a woman is to be arrested. According to Kavita Manikikar, CBI has demonstrated no such exercise being undertaken. CBI supplied the reason of "a strong suspicion" that the petitioner might abscond. But the Court remained unimpressed; it has observed that the CBI has pointed out "no exigency" justifying non-compliance of mandatory requirement in section 46 (4) of the Code. 92. Besides, Kavita Manikikar has also observed that if CBI felt any exigency, it should have taken recourse to the exception carved out in Section 46 (4) itself. But it did not. On facts, Kavita Manikikar has further noted that it is a male police officer that effected the arrest; therefore, the "presence of the other lady police official in the office of the CBI at the time of effecting arrest or presence of her husband is of no consequence". Kavita Manikikar has concluded that any arrest which violates the "provisions contained in the Code shall be liable to be termed as not in accordance with the Code and thus, illegal". In other words, where a statute mandates that no woman shall be arrested after sunset and before sunrise and the arrest of a person when she is a woman has to be made by a police officer who is a female, the statute cannot be simply ignored. 93. In Bharati S. Khandhar, another Division Bench of this Court (per S. S. Shinde J) has reminded itself that there are various judicial pronouncements taking a consistent view that if police officers illegally arrest, that violates Article 21 of the Constitution of India. On facts, it has observed the respondent police officer has not followed the procedure under sub-section (4) of Section 46 of the Code. On facts, it has observed the respondent police officer has not followed the procedure under sub-section (4) of Section 46 of the Code. The Court has further observed that it was the police officer's duty to have either obtained the Judicial Magistrate's prior permission or to have arrested the petitioner on the next day after sunrise. The legislative intent cannot be ignored. 94. In Veneela Tilak, yet another Division Bench of this Court has held that merely calling a female officer to search her will not fulfil the legislative intent if a woman accused has to be searched. The legislative intent appears to be to protect the lady accused's modesty while the search takes place. The search must have strict regard for decency. Therefore, the officers will necessarily have to secure the presence of lady panchas. On the contrary, if the search is carried out in the male panchas' presence, the very statutory purpose of section 50 (4) of the NDPS Act is lost. 95. Veneela Tilak has gone on to observe that when the officer does not depose that he had followed the procedure mandated by law, no presumption can be drawn in the prosecution's favour that it has followed the procedure. But on facts, Veneela Tilak has held that the police have complied with section 42 of the NDPS. Act. 96. Let us see here what the facts are on this issue. On 13.03.2020, the police were patrolling, at "1.15 am" they received information that "one female person had concealed narcotic drugs at her rented residential flat". She was likely to dispose of the contraband between "03.00 hrs and 04.00 hrs". Then, the PSI on patrolling duty summoned the field test kit and other paraphernalia from the police station. He also summoned three constables-two men and one woman. By 2.15 am., the panchas too arrived. But the police did plead, even before the trial Court, that they arrested the applicant at 7.30 am. 97. Even if it is disbelieved that the arrest took place at 5.40 a.m. as the applicant has contended, the case diary goes to show that the police along with the applicant left the place of search by 6.30 a.m.; they showed formal arrest at 7.30 a.m.. We will take the time when the police took the applicant into custody as the time of the arrest. Then it was 6.30 am. We will take the time when the police took the applicant into custody as the time of the arrest. Then it was 6.30 am. The formal arrest, as the police contend, may have been at 7.30 am. What matters is the deprivation of free movement and detention of a person, not recording that factum. So the terminal point when the arrest was completed could be taken as 6.30 am. For an arrest occurs when police take you into custody and is complete the moment you, as the suspect, are no longer free to walk away from the arresting officer. Thanks to google search, we will ascertain the time of sunrise on 13 March 2020. It was 6.42 am https://www.timeanddate.com/sun/@1271157?month=3&year=2020. 98. If we examine section 46 of Cr PC., sub-section (1) declares that "in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action". Here, the police took the applicant into custody by 6.30 am. Sub-section (4) of section 46 mandates thus: (4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. 99. Here, the arrest took place by 6.30; that is, before sunrise. Section 46 of Cr PC., evidently, has not been complied with. That apart, though a woman police constable was summoned, she played no role in the applicant's arrest. It was the PSI, a male police officer, all the way that arrested the applicant. 100. This Court in Bharati S. Khandhar has tellingly observed that "even if the contention of the Respondent-State is accepted that the various Courts issue more than 200 bailable/non-bailable warrants against the Petitioner, that would not entitle the Police Officers to take the law in their own hands and in flagrant violation of the aforesaid provisions, arrest the person". The police officers are bound by the provisions of the Code. The police officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to a woman through sub-section (4) to section 46 of Cr PC. The police officers are bound by the provisions of the Code. The police officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to a woman through sub-section (4) to section 46 of Cr PC. "Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise". 101. Bharati S. Khandhar acknowledges the practical difficulties in the process. It does agree that under exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary. However, unless the procedure laid down under sub-section (4) of section 46 of Cr PC is followed, no woman can be arrested at the police officers' whims and wills. 102. So guided by the case holding of Kavita Manikikar, Bharati S. Khandhar, and Veneela Tilak, I hold that the arrest of the applicant in LDVC-BA-77-2020 violated the mandatory statutory mandate under section 46 of Cr PC. That accepted, the applicant's arrest stands vitiated and remains illegal. Result: 103. I dismiss LD-VC-BA-76-2020, but allow LD-VC-BA-77-2020 and enlarge the applicant on bail, subject to these conditions: ORDER (i) The application of bail is allowed. (ii) The applicant is directed to be released on bail on her executing P.R. Bond for Rs. 50,000/- and on his furnishing two sureties, each for the like sum, to the satisfaction of the learned trial Judge. (iii) The applicant should not leave the State of Goa, without prior permission of the learned trial Judge. (iv) The applicant shall visit the jurisdictional police station twice a week, that is, on Monday and Thursday at 11.00 a.m. (v) The applicant shall cooperate with the police during the investigation and shall attend the hearing of the case on the dates fixed by the trial Court. (vi) The applicant shall not influence, induce, threaten, or coerce the witness; nor should she abuse the process. (vii) The applicant shall not commit similar or other offences. (viii) The applicant's failure to abide by these conditions will entail the prosecution to apply for the cancellation of bail now granted to the applicant. (ix) The Bail Application stands disposed of. Parties to act on the authenticated copy of this order.