Bombay High Court
Sneha Suresh Bhujel vs State Of Maharashtra And Anr on 3 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S.M.Modak
2025:BHC-AS:16524-DB
4-WP-1563-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1563 OF 2025
Mrs.Sneha Suresh Bhujel
Age about 28 Years, Occupation : Housewife,
Adult Indian Inhabitant, Residing at:-
Digitally signed
Ramgarh Nagar, Gaushala Road, Mulund (W),
by SATISH
SATISH
RAMCHANDRA
SANGAR
Mumbai : 400080. ...Petitioner
RAMCHANDRA
SANGAR Date:
2025.04.09
17:33:19
+0530 Versus
1. The State of Maharashtra
(Through the Office of the Public Prosecutor)
2. Senior Police Inspector
(Sahar Police Station, Mumbai) ...Respondents
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Mr.Kripashankar Pandey a/w Ms.Neeta Solanki, Mr.Shailesh
Mishra and Ms.Kiran Dubey i/b. Unison Legal - Advocates for
Petitioner.
Mr.S.V.Gavand - APP for Respondents - State.
Mr.Amarsinh Deshmukh - Police Sub-Inspector - Sahar Police
Station - Mumbai.
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CORAM : SARANG V. KOTWAL &
S.M.MODAK, JJ.
DATE : 3rd APRIL 2025
ORAL JUDGMENT (PER SARANG V. KOTWAL, J.)
1. This is a Petition for issuance of a Writ in the nature
of Habeas Corpus, for the release of the detenue Suresh
Bahadur Bhujel from the alleged illegal detention by the
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Respondent No.2. The Petition is filed by the wife of the
detenue.
2. Heard the learned counsel Mr.Kripashankar Pandey
for the Petitioner and learned APP Shri.S.V.Gavand on behalf of
the Respondents-State.
3. The main contention of the learned counsel for the
Petitioner is, that the detenue was produced before the learned
Magistrate for the first remand beyond the period of twenty
four hours which is in violation of Section 58 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 ("BNSS") and also is violative
of Article 22(2) of the Constitution of India. According to the
learned counsel, therefore, this infringes the Articles 21 and 22
and therefore, he is entitled to be released from the detention.
4. Before referring to the arguments of the learned
counsel for the Petitioner, and of the learned APP, very briefly
the allegations in the F.I.R. can be noted as follow:-
(i) The F.I.R. was lodged by one Sujata Ganesh Kale.
She has stated, that she has joined the Mumbai
Police as Police Constable from 2006, and on the
date of filing of the F.I.R. lodged by her, she was
working as a Counter Officer on behalf of the
Bureau of Immigration at Chhatrapati Shivaji
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Maharaj International Airport.
(ii) On 17th March 2025, she was on duty at Counter
No.19 from 8.00 a.m. At about 9.15 a.m. on 17 th
March 2025, the detenue approached her Counter
and tendered certain documents for Immigration
clearance. Those documents included the Voting
card, Boarding pass for the flight from Mumbai to
Kathmandu and the Aadhar card. The scheduled
departure timing of his flight was 11.15 a.m. The
informant got suspicious about him. Therefore, for
further enquiry, she took him before Wing In-charge
Shri.Pankajkumar Yadav. He made enquiries with
the detenue. It was revealed that he had come in
India in 2000 and was staying at Mulund (West).
After coming to India, he had prepared the Aadhar
card and Voter card. Shri.Pankajkumar Yadav - the
Duty Officer then made further enquiries and at
that time, it was revealed that the detenue was
having Nepali citizenship card in his mobile.
Therefore, it was confirmed that he was a citizen of
Nepal. It was then made clear that he had forged
the Indian Aadhar card and Voter's card and on the
basis of those documents, he had attempted to
travel from Mumbai to Kathmandu, thereby he had
cheated the Indian Immigration Authorities. When
this was made clear, the informant on the orders of
F.R.R.O.Mumbai, produced the detenue before the
Sahar Police Station along with those forged
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documents.
On this basis, the F.I.R. is lodged.
5. The learned counsel for the Petitioner submitted
that the detenue had admittedly approached the informant's
Immigration Counter at 9.15 a.m. From that point onwards, he
was stopped from proceeding further which amounted to
putting restrictions on his movement and therefore, it would
amount to his arrest. According to the learned counsel,
admittedly, he was produced before the concerned Magistrate
at 1.20 p.m. on 18th March 2025 which was beyond the period
of twenty four hours from 9.15 a.m. on 17 th March 2025. This
was in violation of the aforementioned provisions.
6. In support of his contentions, he relied on the
judgments of:-
(i) The Hon'ble Supreme Court passed in Special Leave
Petition (Criminal) No.1136 of 2023 in case of
Directorate of Enforcement V/s. Subhash Sharma
decided on 21st January 2025.
(ii) A Single Judge Bench judgment of this Court in
case of Ashak Hussain Allah Detha @ Siddique and
another V/s. The Assistant Collector of Customs (P)
Bombay and another reported in 1990 SCC OnLine
Bom 3.
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7. On the other hand, learned APP relied on the
Affidavit filed by the Police Sub-Inspector Amarsinh Anil
Deshmukh pointing out the facts of this case. He submitted,
that the Immigration Officers including the First-Informant
were empowered to carry out the enquiry about the
passengers. Stopping the suspected person for enquiry will not
amount to arrest. According to the Police, the arrest was
formally effected at 6.30 p.m. on 17 th March 2025. He was
brought to the Police Station at 2.30 p.m. Shri.Gavand
submitted that even assuming that the actual time of arrest was
2.30 p.m. on 17th March 2025, even then, since the detenue
was produced at 1.20 p.m. on 18 th March 2025 before the
concerned Magistrate, it will not amount to the violation of the
requirement to produce the detenue within twenty four hours
from his arrest. He has submitted that in case of Subhash
Sharma referred to hereinabove, the facts were completely
different.
8. We have considered these submissions. Before
referring to the rival contentions, briefly, the timings as
contended by both the learned counsel can be considered in
the light of the Affidavit filed on behalf of the Respondents-
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State of Maharashtra.
(i) There is no dispute that the detenue was produced
before the Judicial Magistrate First Class, 66th
Court, Andheri on 18th March 2025 at 1.20 p.m.
The dispute is about the time of arrest of the
detenue.
(ii) The events as unfolded show that the detenue
reported to the Immigration Departure Counter
No.19 at Chhatrapati Shivaji Maharaj International
Airport, Mumbai at 9.15 a.m. on 17th March 2025.
The informant got suspicious and he was taken to
the Wing In-charge Mr.Pankajkumar Yadav. Further
enquiry was made and it was found that he was
carrying the forged documents and thereafter, he
was produced at the Sahar Police Station at 2.30
p.m. It is mentioned in the Affidavit that after
making preliminary enquiry, the information given
by the informant Smt.Sujata Kale was reduced into
writing and the offence was registered on 17 th
March 2025 at 4.25 p.m. vide C.R. No.258 of 2025
at Sahar Police Station under Sections 336(2),
336(3), 318(4) and 340(2) of the Bharatiya Nyaya
Sanhita, 2023 ("BNS").
(iii) The Affidavit further mentions that after
registration of the F.I.R., the investigation
commenced and the documents produced by the
informant were seized by the Police as per the
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production panchnama dated 17th March 2025
drawn between 5.10 p.m. to 5.50 p.m. Since the
involvement of the detenue was prima facie
established, and it was necessary to arrest him, he
was informed about the grounds of arrest and by
executing arrest panchnama, he was arrested at
6.30 p.m. on 17th March 2025. The proforma of the
F.I.R. mentions that the information was received
by the Police Station at 2.30 p.m. on 17 th March
2025 and the occurrence of the offence was
described as 9.15 a.m. on 17th March 2025.
9. The contention of the learned counsel for the
Petitioner is, that the detenue was under arrest right from 9.15
a.m. on 17th March 2025. However, we are unable to agree
with this contention. The F.I.R. itself shows that at 9.15 a.m.
when he approached the Counter, the informant became
suspicious and the detenue was taken to the Wing In-charge
Shri.Pankajkumar Yadav who made enquiries and verified the
documents of the detenue. Obviously, before the enquiry and
before being satisfied that those documents were forged, no
action could have been taken against any passenger. Only after
it was revealed and only after the Immigration Officers were
satisfied that the detenue was carrying the forged documents
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and had attempted to travel on the forged documents, he was
taken to the Police Station at 2.30 p.m. on 17 th March 2025.
Therefore, it is not possible to hold that from 9.15 a.m. on 17 th
March 2025, the detenue was under arrest. In this view of the
matter, the reliance of the learned counsel on the case of Ashak
Hussain is totally misplaced. It was not a question of putting
restraint on the personal liberty of the detenue. However, the
Immigration Officers were well within their rights, and in fact,
it was their duty to make enquiries about the genuineness of
the documents produced by the passengers. Till it was clear
that a particular passenger was carrying the forged documents,
he cannot be treated as an accused or a person whose liberty is
curtailed. The Immigration Officers were well within their
rights in carrying out the enquiry. We do not find any fault with
this procedure and we do not see how that period of enquiry
can be treated as an arrest of the detenue.
10. As far as the case of Subhash Sharma is concerned,
in that case, the facts were that the accused in that case was
detained and taken in custody at 6.00 p.m. on 4 th March 2022
at IGI Airport, New Delhi, when the Bureau of Immigration
executed the LOC issued against that accused and held him in
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custody on behalf of the ED. The physical custody of the
accused was taken by the ED at 11.00 a.m. on 5 th March 2022
and he was produced before the concerned Magistrate at 3.00
p.m. on 6th March 2024. The Hon'ble Supreme Court has
clearly observed, that the accused was not produced before the
nearest learned Magistrate within twenty four hours from
11.00 a.m. on 5th March 2022. Thus, in that case, the ED had
taken custody of the accused at 11.00 a.m. on 5 th March 2022
and inspite of that, he was produced before the concerned
Magistrate at 3.00 p.m. on 6th March 2024. This period was
clearly beyond the stipulated period of twenty four hours. The
same judgment also mentions that the Bureau of Immigration
had detained the accused at the Airport from 4 th March 2022
on behalf of the Directorate of Enforcement. Thus, the facts in
that case are completely different.
11. In the present case, the detenue was stopped for
making enquiry as his documents appeared doubtful.
Thereafter, the enquiry was conducted and only after being
satisfied about the offence having been committed, he was
taken to the Police Station at 2.30 p.m. Learned APP
Shri.Gavand rightly submitted, that even if it is assumed that
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he was under restraint from 2.30 p.m. on 17 th March 2025, he
was produced at 1.30 p.m. on 18 th March 2025 before the
concerned Magistrate which was well within the stipulated
period of twenty four hours and therefore, there was no
violation of any fundamental right or statutory right of the
detenue. In this view of the matter, we do not find any merit in
the Petition. It is accordingly dismissed.
12. It is made clear, that the detenue can avail of his
other remedy of pursuing the Bail Application on merits.
(S.M.MODAK, J.) (SARANG V. KOTWAL, J.)
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