Haneef A.Y. Vs State of Kerala (Kerala High Court)
Summary: The Kerala High Court, in Haneef A.Y. Vs State of Kerala, considered whether the constitutional requirement to produce an arrested person before a Magistrate within twenty-four hours begins from the actual deprivation of personal liberty or from the subsequent formal recording of arrest by the police. Justice C.S. Dias examined the legality of the petitioner’s judicial remand in connection with Crime No. 504/2026 of Angamaly Police Station, Ernakulam, involving alleged offences under Sections 22(c), 8(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The principal question concerned compliance with Article 22(2) of the Constitution and the corresponding procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023.
According to the prosecution, the Detecting Officer received secret information on 21 April 2026 at approximately 13:45 hours concerning the transportation of narcotic substances from Thrissur in a vehicle bearing registration number MH 04 FZ 6054. The vehicle was intercepted at approximately 14:30 hours, and the petitioner was identified as its driver. A search reportedly resulted in the recovery of 61.16 kilograms of ganja. The petitioner maintained that he was taken into police custody immediately upon interception. However, the police recorded his formal arrest only at 19:45 hours that evening and produced him before the Judicial First Class Magistrate, Angamaly, at 18:50 hours on 22 April 2026.
The petitioner challenged his remand on the ground that more than twenty-four hours had elapsed between actual detention and production before the Magistrate. He submitted that the police could not circumvent Article 22(2) by describing his initial confinement as surveillance and recording the arrest several hours later. Reliance was placed upon Directorate of Enforcement Vs Subhash Sharma, Muhammed Nashif U Vs State of Kerala and Biswajit Mandal Vs Inspector, Narcotic Control Bureau. The petitioner contended that the remand order was unconstitutional, arbitrary and liable to be set aside, and sought release on bail.
The prosecution opposed the petition, arguing that only the petitioner’s vehicle had initially been intercepted and that he was kept under surveillance until his arrest was formally recorded at 19:45 hours. On that calculation, the prosecution maintained that his production before the Magistrate on the following evening fell within the prescribed twenty-four-hour period. The Investigating Officer submitted a report supporting this version. The controversy therefore required the High Court to determine the legal significance of the distinction between effective physical custody and a subsequent formal arrest entry.
The High Court relied on Niranjan Singh and Another Vs Prabhakar Rajaram Kharote and Others, (1980) 2 SCC 559, in which the Supreme Court explained that custody may exist where a person is under the physical control of an officer exercising coercive authority. The Court also considered State of Haryana and Others Vs Dinesh Kumar, (2008) 3 SCC 222, concerning the ordinary meaning of arrest as restraint or deprivation of personal liberty. These decisions established that the legal character of custody depends upon actual restriction of freedom and cannot be determined merely by the terminology chosen by the investigating agency.
The Court further referred to Directorate of Enforcement Vs Subhash Sharma, which emphasised the constitutional consequences of detention beyond twenty-four hours without production before a Magistrate. The High Court noted that its earlier decisions in Biswajit Mandal and Muhammed Nashif U had applied the principle that the constitutional clock begins when personal liberty is effectively curtailed, rather than when an arrest memo is subsequently prepared. The distinction was particularly important because formal arrest records cannot legitimise an earlier period of coercive custody by retrospectively shifting the starting point of the detention period.
Applying these principles, the High Court treated 14:30 hours on 21 April 2026 as the relevant starting point because the petitioner had been detained when the vehicle was intercepted. His production before the jurisdictional court at 18:50 hours on 22 April 2026 was therefore beyond twenty-four hours. The Court concluded that the resulting judicial remand order was legally unsustainable. It exercised its inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and set aside Annexure A3, directing that the petitioner be released on bail subject to appropriate safeguards.
The High Court ordered release upon execution of a bond for Rs.1,00,000 with two solvent sureties for the like amount. The petitioner was required to appear before the Investigating Officer every Saturday between 9:00 a.m. and 11:00 a.m. until filing of the charge sheet and whenever otherwise directed. Additional conditions prohibited interference with witnesses or evidence, commission of similar offences and departure from the jurisdictional court’s territorial limits without permission. The judgment reinforces the constitutional principle that the twenty-four-hour production requirement under Article 22(2) is calculated from actual coercive detention, not merely from a formal police entry recording arrest. The Court’s ruling concerned the legality of detention and remand; it did not determine the petitioner’s guilt or innocence of the alleged NDPS offences.
Cases Discussed
1. Directorate of Enforcement Vs Subhash Sharma (Supreme Court); 2025 KLT (Online) 1436. The High Court reproduced paragraph 6 of this decision concerning detention extending beyond twenty-four hours without production before the nearest Magistrate. The Supreme Court treated such detention as violative of Articles 21 and 22(2) of the Constitution.
2. Muhammed Nashif U Vs State of Kerala (Kerala High Court); 2025 (7) KHC 496. Cited and relied upon for the principle that the twenty-four-hour period commences when the accused is effectively detained and deprived of personal liberty, notwithstanding a subsequent formal arrest entry.
3. Biswajit Mandal Vs Inspector, Narcotic Control Bureau (Kerala High Court); 2025 KLT (Online) 2656. Relied upon concerning the distinction between actual police custody and the formal recording of arrest, and the constitutional consequences of delayed production before a Magistrate.
4. Niranjan Singh and Another Vs Prabhakar Rajaram Kharote and Others (Supreme Court); (1980) 2 SCC 559. The Court relied on the meaning of custody where a person is in the physical hold of an officer exercising coercive power and referred to the impermissibility of disguising effective custody as informal detention.
5. State of Haryana and Others Vs Dinesh Kumar (Supreme Court); (2008) 3 SCC 222. Discussed regarding the meaning of arrest as restraint or deprivation of personal liberty and the importance of actual restriction rather than the formal legality or description of arrest.
FULL TEXT OF THE ORDER OF KERALA HIGH COURT
The petitioner is the 1st accused in Crime No. 504/2026 registered by the Angamaly Police Station, Ernakulam, alleging that the accused have committed the offences punishable under Sections 22(c), 8(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The crux of the prosecution allegation is that; On 21.04.2026, at around 13:45 hours, the Detecting Officer received a secret information that narcotic substances were being transported in a vehicle bearing Registration No.MH 04 FZ 6054 from Thrissur. Accordingly, the Detecting Officer and party intercepted the above vehicle at 14:30 hours and found that the petitioner was the driver of the vehicle. On conducting search of the vehicle, 61.16 kgs of ganja was recovered from the vehicle. Thus, the petitioner has committed the above offences.
3. The petitioner has stated that, although his vehicle was intercepted and he was taken into custody on 21.04.2026 at 14:30 hours, he was produced before the Court of the Judicial First Class Magistrate, Angamaly (‘Jurisdictional Court’, in short) only on 22.04.2026 at 18:50 hours, which is much beyond the twenty-four hour period mandated under Article 22(2) of the Constitution of India and Sections 58 and 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Unmindful of the constitutional and statutory violation, the Jurisdictional Court has remanded the petitioner to judicial custody by Annexure A3 order. Annexure A3 order is ex facie illegal, arbitrary and against the law laid down by the Hon’ble Supreme Court in Directorate of Enforcement vs. Subhash Sharma [2025 KLT (Online) 1436] and the decisions of this Court in Muhammed Nashif U v. State of Kerala [2025 (7) KHC 496] and Biswajit Mandal v. Inspector, Narcotic Control Bureau [2025 KLT (Online) 2656]. Therefore, Annexure A3 order may be set aside and the petitioner may be enlarged on bail.
4. I have heard the learned counsel for the petitioner and the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner reiterated the contentions raised in the Crl.M.C. He submits that in view of the violation of the constitutional as well as the statutory mandate, the petitioner is entitled to be enlarged on bail as held by this Court in Biswajit Mandal and Muhammed Nashif U ‘s cases supra.
6. The learned Senior Public Prosecutor seriously opposes the Crl.M.C. He submits that only the vehicle of the petitioner was intercepted. The petitioner’s arrest was only recorded on 19:45 hours on 21.04.2026 and he was kept under surveillance. The petitioner was produced before the Jurisdictional Court at 18:50 hours on 22.04.2026. Therefore, there is no violation of the statutory provision as contended by the learned counsel for the petitioner. The Investigating Officer has also filed a report stating the same facts.
7. On reading of Annexure A1 First Information Report it is not disputed that the vehicle in which the petitioner was travelling was intercepted by the Detecting Officer at 14:30 hours on 21.04.2026. The petitioner contends that he was taken into custody by the Detecting Officer then and there. However, the Detecting Officer has stated that the petitioner was only kept under surveillance and his arrest was recorded only on 19:45 hours on 21.04.2026, and he was produced before the Jurisdictional Court at 18:15 hours on 22.04.2026 well before the expiry of 24 hours.
8. In Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Others [(1980)2 SCC 559] the Hon’ble Supreme Court has categorically held that if a person is in physical hold of an officer with coercive power, then he is deemed to be in the custody of such person for the purpose of Section 439 Cr.P.C. It is succinctly observed that the equivocatory quibblings and hide and seek niceties are sometimes heard in court that the police have taken a man into informal custody but have not arrested him, have only detained him for interrogation but not taken him into formal custody and another terminologies, dubieties are unfair evasions of straightforwardness of the law.
9. Likewise, in State of Haryana and others v. Dinesh Kumar [(2008) 3 SCC 222], the Honourable Supreme Court after relying on the earlier decisions observed that the word ‘arrest’ when used in its ordinary and natural sense means, apprehension of restraint or 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 which he has been deprived of his personal liberty to go where he pleases.
10. In Subash Sharma’s case, the Honourable Supreme Court, while dealing with a case of an identical nature, has gone on to observe as follows:
“6. This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant – Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4 th March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6 th March, 2024. The perusal of the arrest order (Annexure p- 1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5 th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Art.22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Art.22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Art.22(2) of the Constitution, even his fundamental right to liberty guaranteed under Art.21 has been violated.”
11. It is taking note of the principles laid down by the Hon’ble Supreme Court in the above said decisions that this Court in Biswajit Mandal as well as in Muhammed Nashif U has held that even if a person is taken into custody by the police though his formal arrest is not recorded, the time starts to run the moment the person’s personal liberty is deprived. Accordingly, this Court held that the 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
12. In the light of the above exposition of law and the undisputed fact that the petitioner was detained by the Detecting Officer on 21.04.2026 at 14:30 hours, but he was produced before the Jurisdictional Court only on 22.04.2026 at 18:50 hours, which is well beyond the twenty-four hour time period after his detention, I am satisfied that Annexure A3 order remanding the accused is per se illegal and unsustainable in law. In the aforesaid circumstances, I am convinced and satisfied that this is fit case to exercise the inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Accordingly, I allow the Crl.M.C. in the following manner:
(i) Annexure A3 remand report is set aside.
(ii) The petitioner is ordered to be released on bail on him executing of bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum to the satisfaction of the Jurisdictional Court, which shall be subject to the following conditions:-
(a) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m. till the complaint (charge sheet) is filed.
(b) He shall also appear before the Investigating Officer as and when directed.
(c) The petitioner shall not directly or indirectly make 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 any Police Officer or tamper with the evidence in any manner, whatsoever;
(d) The petitioner shall not commit any similar offence while he is on bail;
(e) The petitioner shall not leave the territorial jurisdiction of the Jurisdictional Court without its permission.
(f) In case of violation of any of the conditions mentioned above, the Jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(g) Applications for cancellation of bail, deletion/modification of the bail conditions shall be moved and entertained by the Jurisdictional Court.
