Kerala High Court
Biswajit Mandal vs Inspector on 12 August, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
BAIL APPL. NO. 8581 OF 2025
CRIME NO.2/2025 OF NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM
AGAINST THE ORDER DATED 16.06.2025 IN Bail Appl. NO.7056 OF
2025 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED:
BISWAJIT MANDAL,
AGED 28 YEARS, S/O BHABESH MANDAL,
BILAKANDI(DAKSHIN), JIAGANJ,
AMAIPARA PO, MURSHIDABAD,
WEST BENGAL, PIN - 742123
BY ADV SMT.N.B.FATHIMA SULFATH
RESPONDENT/COMPLAINANT:
INSPECTOR,
NARCOTIC CONTROL BUREAU,
COCHIN ZONAL UNIT, PIN - 682042
BY ADVS.
SHRI.R.VINU RAJ, SPL. PUBLIC PROSECUTOR, NARCOTICS
CONTROL BUREAU
SHRI.K.K.SUBEESH
MS.NIKHINA THOMAS, AMICUS CURIAE
MS.NEHA BABU, AMICUS CURIAE
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.08.2025, THE COURT ON 12.08.2025 PASSED THE FOLLOWING:
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"C.R."
BECHU KURIAN THOMAS, J.
--------------------------------
B.A. No.8581 of 2025
---------------------------------
Dated this the 12th day of August, 2025
ORDER
When does the twenty four hour period to produce an accused before
the Magistrate commence? Does it start from the time of arrest as recorded
by the police or from the time when the accused was detained? These
questions are addressed in this application seeking regular bail filed under
section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
2. Petitioner is the accused in Crime No.2 of 2025 of the Narcotics
Control Bureau, Cochin Zonal Unit, alleging offences punishable under
section 8(c) r/w section 20(b)(ii)(C), 28 and section 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short ‘NDPS Act‘).
3. Prosecution alleges that on 25.01.2025, the accused was found in
possession of 26.92 Kg of ganja from platform No.3 of Ernakulam Junction
Railway Station and thereby committed the offences alleged. Petitioner has
been in custody since 26.01.2025.
4. I have heard Adv. Fathima Sulfath N.B., on behalf of the petitioner
and Sri. R. Vinu Raj, the learned Special Public Prosecutor on behalf of the
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respondents. Considering the importance of the question involved, and on
noticing the commitment with which two law interns were watching the
proceedings, this Court deemed it fit to seek their assistance. The two interns
who were present in Court expressed their willingness and hence this Court
appointed Ms. Nikhina Thomas and Ms. Neha Babu, second year students of
Ramaiah College, Bengaluru, as Amici Curiae to assist the Court.
5. Smt. Fathima Sulfath N.B., the learned counsel for the petitioner,
contended that petitioner’s arrest, pursuant to the alleged detection of
possession of contraband, is vitiated on account of the failure to communicate
the grounds for arrest as contemplated by law. Apart from the above, the
learned counsel submitted that petitioner was detained in custody beyond the
period of twenty-four hours in violation of the constitutional and statutory
prescriptions and hence he ought to be released on bail. Relying upon the
circumstances of the case where the petitioner was taken into custody at 3
pm on 25.01.2025 while his arrest was recorded at 2.00 pm on 26.01.2025
and produced before the Magistrate only at 8.00 pm on 26.01.2025, it was
submitted that the arrest was in violation of Article 22(2) of the Constitution
and hence petitioner ought to be released on bail.
6. Sri. R. Vinu Raj, the learned Special Public Prosecutor, on the other
hand, contended that the seizure was completed by 7.00 pm on 25.01.2025,
and the petitioner was arrested at 2.00 pm on 26.01.2025, and he was
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produced before the Magistrate by 8.00 pm, all having been done within
twenty-four hours, there is nothing illegal in the arrest.
7. Ms. Nikhina Thomas and Ms. Neha Babu, the Amici Curiae, argued
in their well articulated address supported by an equally thorough argument
note, that the twenty-four hour clock for production of a person before the
Magistrate begins from the moment of effective curtailment of liberty and not
from the formal recording of arrest. Referring to the sequence of events in
the instant case, it was submitted that the mahazar dated 25.01.2025
indicates that petitioner was produced before the Magistrate beyond the
period of twenty-four hours and hence there has been an unrecorded period
of custody, which indicates illegal detention. The Amici curiae invited the
attention of this Court to the decisions in D.K. Basu v. State of W. B. [(1997)
1 SCC 416] and Joginder Kumar v. State of U.P. and Others [(1994) 4 SCC
260] and submitted that the delay in formally recording the arrest within time
and production before the Magistrate rendered the petitioner’s arrest in
violation of the procedure established by law. The Amici Curiae also
submitted that the delay in formally recording the arrest, despite the accused
being in custody from 25.01.2025, constitutes an unrecorded period of
custody, and the time for production of the accused before the Magistrate
must commence from the moment his liberty is curtailed and not when the
formal arrest was recorded.
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8. The question to be considered has already been referred to in the
proemial part of this order and is hence not repeated. Courts are often called
upon to resolve the complex issue of the need to balance the individual
liberties with the requirement of criminal investigation. Law has to apply
equally for all. No man is above the law and none are below it either. Even
the most notorious criminal is entitled to be treated with fairness and justice.
Fundamental rights have been regarded as the pride of our Constitution and
Article 21 as its soul. Equal protection of laws is so embedded in our system
of criminal jurisprudence that whenever there is an infraction of the law
leading to deprivation or curtailment of liberty, courts have stepped in to the
aid of the deprived, much to the chagrin of those wielding power.
9. In Joginder Kumar v. State of U.P. and Others [(1994) 4 SCC
260], the Supreme Court noted that the quality of a nation’s civilization can be
largely measured by the methods it uses in the enforcement of criminal law.
After referring to the Third Report of the National Police Commission, the
Court observed that the power of arrest has been identified as one of the
chief sources of corruption in the police and further that the existence of
power to arrest is one thing while the justification for its exercise is quite
another and the arrest should not be made in a routine manner as denying a
person of his liberty is a serious matter.
10. Noticing the perennial problem of striking a balance between the
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needs of law enforcement on the one hand and protection of the citizens from
injustice at the hands of the law enforcement machinery on the other, the
Supreme Court had in Nandini Satpathy v. P. L. Dani and Another [AIR
1978 SC 1025] observed that while producing humane justice, the
constitutional perspective cannot be ignored. Almost two decades later, the
Supreme Court in D.K. Basu v. State of W.B. [(1997) 1 SCC 416] observed
that; “Experience shows that worst violations of human rights take place
during the course of investigation, when the police with a view to secure
evidence or confession often resorts to third degree methods including torture
and adopts techniques of screening arrest by either not recording the arrest
or describing the deprivation of liberty merely as a prolonged interrogation.”
(emphasis supplied). Thereafter, the Court laid down requirements for
compliance in all cases of arrest or detention till legal provisions to that effect
were made. Since the requirements laid down are not relevant in the instant
case, they are avoided from being reproduced.
11. The technique of not recording the arrest under one pretext or the
other is often resorted to under the guise of investigation. Brutalities of police
generally occur during these periods of uncontrolled authority. Unless there is
a check, such unrecorded periods of custody can be the source of human
rights violations.
12. Article 22(2) of the Constitution states that ‘every person who is
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arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest, excluding the
time for the journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period without
the authority of a magistrate.’ The term ‘arrested and detained’ is a phrase
which is often misused by the police authorities to assert that the time starts
only from the actual time of arrest. But is it so? Is that the legal interpretation
to be adopted for the said phrase? Answers to these questions are no longer
res integra.
13. In Niranjan Singh and Another v. Prabhakar Rajaram Kharote
and Others [(1980) 2 SCC 559], the Supreme Court while considering the
question as to when is a person in custody within the meaning of S. 439
Cr.P.C., had noted that a person can be said to be in custody “When he is in
duress either because he is held by the investigating agency or other police
or allied authority or is under the control of the court having been remanded
by judicial order, or having offered himself to the court’s jurisdiction and
submitted to its orders by physical presence.” The Court held that he who is
in the physical hold of an officer with coercive power is in custody for the
purpose of S.439 as the law has taken control of the person. The
observations of the Court being illuminating are worth reproduction and is as
follows: “The equivocatory quibblings and hide and seek niceties sometimes
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heard in court that the police have taken a man into informal custody but not
arrested him, have detained him for interrogation but not taken him into
formal custody and other like terminological dubieties are unfair evasions of
the straightforwardness of the law.” .
14. Earlier, in State of Uttar Pradesh v. Deoman Upadhyaya [AIR 1960
SC 1125], a Constitution Bench of the Supreme Court had observed, in the
context of Section 27 of the Indian Evidence Act 1868 that “When a person
not in custody approaches a police officer investigating an offence and offers
to give information leading to the discovery of a fact, having a bearing on the
charge which may be made against him, he may appropriately be deemed to
have surrendered himself to the police. Section 46 of the Code of Criminal
Procedure does not contemplate any formality before a person can be said to
be taken in custody: submission to the custody by word or action by a person
is sufficient.”
15. The above legal principles govern the criminal jurisprudence of this
country in the matter of arrest of a person. The issue is made complex by the
absence of any definition for the term arrest in any statute. However, it is
discernible from section 43 of BNSS that an arrest is made by actually
touching or confining the body of the person to be arrested, unless there is a
submission to the custody by word or action. The erstwhile Section 46 of
Cr.P.C. was considered by the Supreme Court in State of Haryana and
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Others v. Dinesh Kumar [(2008) 3 SCC 222] and after referring to an earlier
decision, observed that “the 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.”
16. In an earlier decision in Directorate of Enforcement v. Deepak
Mahajan and Another [(1994) 3 SCC 440], the Supreme Court had observed
that “the 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 wherever he pleases. When used in the legal sense in
connection 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 seizure or detention of the person in the manner
known to law, which is so understood by the person arrested.”
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17. The etymological derivation of the word ‘arrest’ is from the French
term ‘Arreter’ meaning ‘to stop or stay’. The term denotes a restraint of the
person. Thus, whenever there is a complete restraint on the freedom of
movement or a person is held against his interests in curtailment of his liberty
by a person in authority, it can be said that the said person is under arrest.
Actual restraint either by word or action or conduct would suffice. When a
person is prevented by a person in authority from engaging in his activities at
his free will the former can be said to have been arrested. The failure, refusal
or omission to record an arrest or continuation of an interrogation for
prolonged periods without recording arrest, shall not preclude those periods
of curtailed liberty as constituting arrest.
18. The Constitution mandates that the person arrested be produced
before the nearest Magistrate within twenty-four hours of the arrest and other
than the time necessary to reach the court of the Magistrate from the place of
arrest, there is a peremptory prohibition that the person arrested shall not be
detained beyond the said period without the authority of the Magistrate.
19. The above views are fortified by the decisions of the Bombay High
Court in Hanumant Jagganath Nazirkar v. State of Maharashtra [2025
SCC Online 2508] and in Ashak Hussain Allah Detha @ Siddique and
Another v. Assistant Collector of Customs [1990 SCC OnLine Bom 3] and
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that of the Telengana High Court in Smt. T Ramadevi v. The State of
Telengana [W.P No. 21912/2024]..
20. Hence the period of twenty-four hours to produce an accused before
the Magistrate commences not when the actual time of arrest is recorded by
the police, but runs from the time when the accused was effectively detained
or his liberty was curtailed.
21. Adverting to the facts of the case, the mahazar reveals that petitioner
was taken into custody at 3.00 pm on 25.01.2025, while his arrest was
recorded at 2.00 pm on 26.01.2025, but produced before the Magistrate only
at 8.00 pm on 26.01.2025. The liberty of the petitioner was effectively
curtailed from 3.00 pm on 25.01.2025, from which period onwards, he was
under the control of the NCB officers. Though the notice for giving the
statement under section 67 of the Act was given to the petitioner, even before
and after service of notice, petitioner was under the custody of the NCB
Officers. There was not a moment after 3.00 pm on 25.01.2025 till his arrest,
when he could have been regarded as being free. However, the petitioner
was produced before the Magistrate only at 8.00 pm on 26.01.2025.
Therefore, there has been an unrecorded period of custody, which indicates
illegal detention. Petitioner is hence required to be enlarged on bail.
22. In the result, the petitioner is released on bail on the following
conditions:
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(a) Petitioner shall execute a bond for Rs.1,00,000/- (Rupees One
Lakh only) with two solvent sureties each for the like sum to the
satisfaction of the court having jurisdiction.
(b) Petitioner shall co-operate with the trial of the case and shall
also appear before the investigating officer as and when required.
(c) Petitioner shall not intimidate or attempt to influence the
witnesses; nor shall he attempt to tamper with the evidence.
(d) Petitioner shall not commit any similar offences while he is on
bail.
(e) Petitioner shall not leave the State of Kerala without the
permission of the jurisdictional Court.
In case of violation of any of the above conditions or if any modification or
deletion of the conditions are required, the jurisdictional Court shall be
empowered to consider such applications if any, and pass appropriate orders
in accordance with law, notwithstanding the bail having been granted by this
Court.
Before concluding, this Court places on record, its appreciation for the
assistance rendered by Ms. Nikhina Thomas and Ms. Neha Babu, the Amici
Curiae – the growing buds of the noble profession.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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APPENDIX OF BAIL APPL. 8581/2025
PETITIONER’S/S’ ANNEXURES
Annexure A1 TRUE COPY OF SEIZURE MAHAZAR DATED 25/01/2025
Annexure A2 TRUE COPY OF THE OCCURRENCE REPORT IN CRIME
NO. 2/2025 OF NCB KOCHIN ZONAL UNIT
Annexure A3 TRUE COPY OF ARREST MEMO DATED 26.01.2025
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