On Tuesday, the Kerala High Court, while deciding a bail plea under the Narcotic Drugs and Psychotropic Substances (NDPS) Act,1985, examined a pivotal question in criminal procedure, whether the constitutional clock under Article 22(2) begins at the moment of formal arrest or from the point when an accused’s liberty is first curtailed. Justice Bechu Kurian Thomas observed while addressing the implications of unrecorded custody on the twenty-four hour mandate for production before a Magistrate that “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”.
The case arose from allegations that the petitioner was found in possession of 26.92 kg of ganja. According to the defence, he was taken into custody at 3:00 p.m. on one day but formally arrested only the following afternoon, and produced before the Magistrate much later that evening, well beyond the twenty-four hours permitted under Article 22(2) of the Constitution.
Two second-year law students, Ms. Nikhina Thomas and Ms. Neha Babu, were appointed as amici curiae after the Court noticed their keen observation of proceedings. They argued 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”.
The Court expressed concern over “the technique of not recording the arrest under one pretext or the other” and cautioned that such practices could mask periods of illegal detention and potential human rights violations. Applying these principles, it was found that the petitioner had indeed been detained well before his formal arrest was recorded, resulting in an unaccounted period of custody that was unlawful.
The Court concluded by granting bail to the petitioner subject to conditions, while placing on record its appreciation for the assistance of Ms. Nikhina Thomas and Ms. Neha Babu, appointed as amici curiae, describing them as “the growing buds of the noble profession” for their valuable contribution in resolving the legal issue.
Case Title: Biswajit Mandal Vs. Inspector, Narcotic Control Bureau
Case No: Bail Appl. No. 8581 of 2025
Coram: Justice Bechu Kurian Thomas
Advocate for Petitioner: Adv. N.B. Fathima Sulfath
Advocate for Respondent: Spl. PP R.Vinu Raj, Adv. K.K.Subeesh
Amicus Curiae: Nikhina Thomas, Neha Babu
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