Muhammed Nisham V P Vs State of Kerala (Kerala High Court)
Summary: The Kerala High Court, in Muhammed Nisham V P Vs State of Kerala, held that the constitutional safeguard requiring an arrested person to be produced before a Magistrate within twenty-four hours must be calculated from the time of actual deprivation of personal liberty and not merely from the time recorded in the formal arrest memorandum. Justice K. Babu considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by accused No. 7 in Crime No. 446/2025 of Cherpulassery Police Station, Palakkad. The petitioner was accused of offences punishable under Sections 20(b)(ii)(C) and 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The central issue was whether his detention violated Article 22(2) of the Constitution and Section 58 of the BNSS, thereby entitling him to bail notwithstanding the restrictions ordinarily applicable to offences involving commercial quantities of narcotic substances.
The prosecution alleged that on 26 May 2025, at approximately 2:15 p.m., accused Nos. 1 and 2 were intercepted near Krishnappadi, Nellaya, while transporting 87.725 kilograms of ganja in 42 packets in a Wagon-R car bearing registration number KL-53T-6753. The contraband and vehicle were seized, and the initial accused were arrested. Subsequent investigation allegedly disclosed the participation of accused Nos. 3 to 8 in transporting the contraband. The petitioner, identified as accused No. 7, was thereafter taken into police custody. Although his formal arrest was recorded at 5:30 p.m. on 27 May 2025, he maintained that he had actually been apprehended at 7:10 a.m. that morning and was produced before the jurisdictional court only at 2:45 p.m. on 28 May 2025.
The petitioner’s counsel contended that he had remained in police custody beyond the constitutionally permissible period of twenty-four hours. It was argued that the police could not extend this period simply by postponing the formal recording of arrest. Such detention, according to the petitioner, violated Article 22(2) and rendered his arrest illegal. The prosecution disputed the alleged earlier detention and maintained that the petitioner had been formally arrested at 5:30 p.m. on 27 May 2025 and produced before the Magistrate at 2:35 p.m. on 28 May 2025, within the prescribed period. Thus, determination of the actual commencement of police custody became decisive for adjudication of the bail application.
The High Court examined the sequence of events disclosed in the prosecution records, including the Section 57 report under the NDPS Act, the arrest memorandum and the investigating officer’s objections. The material indicated that, after the petitioner was taken into custody, information provided by him led the police to identify accused Nos. 3, 4 and 5 in Coimbatore. A police team travelled approximately 97 kilometres from Cherpulassery to Coimbatore, apprehended those accused and returned. Further information subsequently led another team to Tanur, approximately 56.4 kilometres away, concerning accused No. 6, whose formal arrest was recorded at 3:40 p.m. on 27 May 2025. The prosecution itself acknowledged that the journey involving the Coimbatore accused took approximately five hours. The Court considered these events important because the petitioner had necessarily been detained before the investigation progressed to the other accused.
On an assessment of this chronology, the High Court inferred that the petitioner’s custody had commenced at least five hours before 3:40 p.m. on 27 May 2025. Since he was produced before the jurisdictional Magistrate at 2:45 p.m. on 28 May 2025, the Court reached the prima facie conclusion that the statutory twenty-four-hour limit had been exceeded. Importantly, the Court expressly clarified that this finding was prima facie and would not prevent the prosecution from adducing evidence to establish that the petitioner had actually been produced within twenty-four hours of arrest. The conclusion was therefore reached for the purposes of the bail proceedings, on the material then available, without finally determining every disputed factual issue.
The High Court relied upon State of Haryana and Others Vs Dinesh Kumar, (2008) 3 SCC 222, and Directorate of Enforcement Vs Deepak Mahajan and Another, (1994) 3 SCC 440, to explain that arrest, in its ordinary and legal meaning, involves actual restraint or deprivation of personal liberty. Referring to Biswajit Mandal Vs Inspector, Narcotic Control Bureau, the Court reiterated that the twenty-four-hour period starts when the accused is effectively detained or his freedom is curtailed. The Court also followed Directorate of Enforcement Vs Subhash Sharma, 2025 (2) KHC 45, in which the Supreme Court explained that custody beyond the constitutional time limit without production before a Magistrate renders the arrest illegal and requires the court dealing with bail to protect the fundamental rights guaranteed by Articles 21 and 22.
The High Court consequently held that, once the petitioner’s arrest was vitiated by violation of the constitutional protection against prolonged police custody, bail could not be denied merely because the twin conditions under Section 37 of the NDPS Act had not been fulfilled. The Court allowed the application and directed his release upon execution of a bond for Rs. 50,000 with two solvent sureties for the like amount. Conditions included attendance before the Investigating Officer every Monday and Friday until filing of the final report, surrender of passport or an affidavit confirming its absence, restrictions on leaving Kerala without permission, prohibition against committing similar offences, and non-interference with witnesses or evidence. The judgment underscores that the special statutory restrictions applicable to NDPS bail do not displace the constitutional protection against unlawful detention. The order granted conditional bail on constitutional grounds and did not decide the petitioner’s guilt or innocence.
Cases Discussed
1. Directorate of Enforcement Vs Deepak Mahajan and Another (Supreme Court); (1994) 3 SCC 440. The High Court relied on this decision for the principle that the existence of arrest is determined by actual deprivation of personal liberty rather than solely by the legality or formal recording of arrest. This principle was relevant to identifying the true commencement of the petitioner’s custody.
2. State of Haryana and Others Vs Dinesh Kumar (Supreme Court); (2008) 3 SCC 222. The Supreme Court’s interpretation of arrest as apprehension, restraint or deprivation of personal liberty was considered while determining when the constitutional twenty-four-hour period began.
3. Biswajit Mandal Vs Inspector, Narcotic Control Bureau (Kerala High Court); B.A. No. 8581 of 2025. The High Court followed this decision, which applied the principles laid down in Dinesh Kumar and Deepak Mahajan, holding that the twenty-four-hour period for production before a Magistrate commences when the accused is effectively detained or deprived of liberty.
4. Directorate of Enforcement Vs Subhash Sharma (Supreme Court); 2025 (2) KHC 45. The High Court relied upon the Supreme Court’s finding that detention beyond twenty-four hours without production before a Magistrate violates Article 22(2) and vitiates the arrest. Paragraph 8 was expressly reproduced concerning the duty of courts to release an accused on bail where fundamental rights under Articles 21 and 22 have been violated.
FULL TEXT OF THE ORDER OF KERALA HIGH COURT
This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
2. The petitioner is accused No.7 in Crime No.446/2025 of Cherpulassery Police Station, Palakkad. The offences alleged against the petitioner are punishable under Sections 20(b)(ii)(C) and 25 r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
3. The prosecution case as narrated in Annexure-7 order reads thus:-
“On 26.05.2025 at about 2.15 pm near Nellaya at Krishnappadi, the accused Nos.1 and 2 were found transporting 87.725 Kgs of Ganja in 42 packets in a Wagon-R car bearing Registration No.KL-53T-6753 for the purpose of sale without any valid documents. They were arrested from the spot and the contraband articles and the vehicle were seized as per seizure mahazar. On investigation, it is revealed that accused Nos.3 to 8 have acted as accomplices in the transportation of ganja. (sic.)”
4. The formal arrest of the petitioner was recorded at 5.30 P.M. on 27.5.2025. He has been in judicial custody since then.
5. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor.
6. The learned counsel for the petitioner submitted that the petitioner was actually taken into custody at 7.10 A.M. on 27.5.2025 from Nellayi, Palakkad and he was produced before the jurisdictional court only on 28.5.2025 at 2.45 P.M. beyond the period of 24 hours. The learned counsel submitted that custody of the petitioner beyond the stipulated period of 24 hours is illegal and infringes his fundamental right under Clause (2) of Article 22 of the Constitution of India. The learned counsel further submitted that his arrest, therefore, gets vitiated. The learned counsel submitted that the petitioner is entitled to be released on bail on the ground that his fundamental right has been violated.
7. The learned Senior Public Prosecutor submitted that the petitioner was arrested only at 5.30 P.M. on 27.5.2025 and he was produced before the learned Magistrate at 2.35 P.M. on 28.5.2025. The learned Senior Public Prosecutor submitted that the petitioner was produced before the jurisdictional court within the stipulated time.
8. Certain facts narrated in the prosecution case are relevant for the consideration of this Bail Application.
9. According to the prosecution, on a secret information received by the Inspector of Police, Mannarkkad Police Station a search was conducted on 26.5.2025 at about 14.15 P.M. near Krishnapadi, Nellayi and accused Nos.1 and 2, who were travelling in a car bearing Registration No.KL-53-T-6753, were found in possession of 42 packets, weighing 87.725 Kg., of Ganja. They were arrested. The contraband was seized as per a seizure mahazar.
10. Based on the confession given by accused No.1, accused No.7, the petitioner herein, was taken into custody. In the police custody, the petitioner revealed that accused Nos.3, 4 and 5 are in Coimbatore. A Police team travelled from Cherpulassery Police Station to Coimbatore and arrested accused Nos.3, 4 and 5 from there. They returned to Cherpulassery Police Station. The distance from Cherpulassery to Coimbatore is 97 Kms. Based on the information given by accused Nos.3, 4 and 5, it was revealed that accused No.6 was arrested by Koppam Police and handed over to Tanur Police Station. Another team travelled from Cherpulassery to Tanur, which is 56.4 Kms. away from there and arrested accused No.6. Accused No.6 was formally arrested at 15.40 hours (3.40 P.M.) at Cherpulassery on 27.5.2025. The formal arrest of the petitioner was recorded at 5.30 P.M. on 27.5.2025 (evident from Annexure-4 arrest memo). Accused Nos.3, 4, 5, 6 & 7 were produced before the Court on 28.5.2025 at 2.45 p.m.
11. There is no dispute as to the date and time of the formal arrest of accused No.6, that is, 3.40 p.m. on 27.5.2025. There is also no dispute that the petitioner was arrested prior to the arrest of accused No.6.
12. Annexure-5 report filed under Section 57 of the NDPS Act reveals that it was after taking the petitioner into custody from Nellayi that the role of accused Nos. 3, 4 and 5 was revealed. In the objection to the bail application filed by the Inspector of Police, Cherpulassery, it is admitted that the Police team took about 5 hours to bring the accused from Coimbatore to Cherpulassery. Annexure-5 further reveals that it was after the production of accused Nos.3, 4 and 5 that the role of accused No.6 was revealed. Admittedly, his formal arrest was recorded at 3.40 p.m. on 27.5.2025. According to the prosecution, the proceedings against the petitioner began after the other accused were identified at 17.30 hours on 27.5.2025.
13. Even according to the prosecution, the Police team took five hours to bring accused Nos.3,4 and 5 from Coimbatore. Therefore, the necessary inference is that the custody of the petitioner commenced at least five hours before 3.40 P.M. But, he was produced before the court only at 2.45 P.M. on 28.5.2025. Therefore, this Court prima facie comes to the conclusion that the petitioner was produced before the jurisdictional Magistrate after 24 hours of his detention.
14. It is made clear that this prima facie conclusion will not preclude the prosecution from adducing evidence to the contrary, to establish that the petitioner was produced before the Court within 24 hours of his arrest.
15. As per Section 58 of the BNSS, no Police Officer shall detain in custody a person arrested without warrant for a period exceeding twenty four hours, exclusive of the time necessary for the journey from the place of arrest to the jurisdictional Court. Article 22 of the Constitution of India also stipulates that every person, who is 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 necessary for the journey from the place of arrest to the Court concerned. The mandate of the Constitution and the BNSS is that no person shall be detained beyond the period prescribed.
16. The word `arrest’ as referred to in the Constitution and the relevant provisions in the BNSS essentially means the deprivation of one’s personal liberty. In State of Haryana and Others v. Dinesh Kumar [(2008) 3 SCC 222], the Apex Court while dealing with the pari materia provision in the Code of Criminal Procedure, held 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.
17. In Directorate of Enforcement v. Deepak Mahajan and Another [(1994) 3 SCC 440], the Supreme Court observed that the question whether a 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.
18. Following Dinesh Kumar and Deepak Mahajan this Court in Biswajit Mandal v. Inspector, Narcotic Control Bureau (B.A.No.8581 of 2025) observed that the period of twenty four hours to produce an accused before the Magistrate commences from the time when the accused was effectively detained or his liberty was curtailed.
19. In the present case, this Court prima facie comes to the conclusion that the petitioner was arrested and detained within the meaning of Article 22 of the Constitution of India and Section 58 of the BNSS prior to 5.30 P.M. on 27.5.2025 and he was produced before the jurisdictional Court after the stipulated period.
20. The Apex Court in Directorate of Enforcement v. Subhash Sharma (2025 (2) KHC 45) held that continuation of accused in custody without producing him before the nearest Magistrate within the stipulated time period of 24 hours is completely illegal and it infringes fundamental rights under Clause (2) of Article 22 of the Constitution of India. The Apex Court made it clear that his arrest gets vitiated on completion of 24 hours in custody.
21. In Subhash Sharma, the Apex Court further held thus:-
“8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Art.21 and Art.22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Art.21 and Art.22 of the Constitution.”
22. I am of the considered view that, as the arrest of the petitioner is vitiated, bail cannot be denied on the ground of non-fullfilment of the twin conditions under Section 37 of the NDPS Act.
Therefore, the bail application is allowed as follows:-
(a) The petitioner is ordered to be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court.
(b) The petitioner shall appear before the Investigating Officer on all Mondays and Fridays between 10 A.M. and 11 A.M. till the final report is filed.
(c) The petitioner shall surrender his passport before the jurisdictional court. If he has no passport, the petitioner shall file an affidavit to that effect.
(d) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court.
(e) The petitioner shall not commit any similar offence while on bail.
(f) The petitioner shall not try to influence the prosecution witnesses or attempt to tamper with the evidence.
(g) If any of the bail conditions are violated by the petitioner, the jurisdictional Court will be at liberty to cancel the bail notwithstanding the fact that this Court imposed the conditions.
