Muhammed Nisham V P vs State Of Kerala
2025 Latest Caselaw 10335 Ker

Kerala High Court

Muhammed Nisham V P vs State Of Kerala on 31 October, 2025

Author: K. Babu

Bench: K. Babu

                                                  2025:KER:82059


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

             THE HONOURABLE MR.JUSTICE K. BABU

  FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947

                BAIL APPL. NO. 12339 OF 2025

(CRIME NO.446/2025 OF Cherpulassery Police Station, Palakkad
     AGAINST THE ORDER/JUDGMENT DATED 25.09.2025 IN Bail
Appl. NO.11762 OF 2025 OF HIGH COURT OF KERALA)



PETITIONER/ACCUSED NO.7:

         MUHAMMED NISHAM V P
         AGED 22 YEARS
         S/O MUHAMMED MUSTHAFA, VAZHAKKA PARAMBIL,
         IRUMBALASSERY NELLAYA, PALAKKAD, PIN - 679335.


         BY ADVS. SRI.BASIL CHANDY VAVACHAN
         SMT.CHARUTHA BHAIJU
         SMT.CHANDHANA BHAIJU
         SHRI.BASIL SAJAN
         SMT.FATHIM NAVAS
         SMT.KAVYA RANI JAYAPRAKASH
         SMT.LEKSHMI PRIYA V.
         SHRI.MUHAMMED SHUHAIB A.S.
         SMT.AISWARYA JALIN
         SMT.RESHMA SUKUMARAN
         SHRI.BASIL SCARIA
                                                          2025:KER:82059

B.A.No.12339 of 2025                2



RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM., PIN - 682031


            ADV M K PUSHPALATHA SR PP

      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
31.10.2025,      THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                           2025:KER:82059

B.A.No.12339 of 2025               3




                           ORDER

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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 2025:KER:82059

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.

K.BABU Judge

TKS 2025:KER:82059

APPENDIX OF BAIL APPL. 12339/2025

PETITIONER ANNEXURES

Annexure-1 THE TRUE COPY OF FIR DATED 26/05/2025 IN CRIME NO. 446/2025 OF CHERPULASERRY POLICE STATION, PALAKKAD.

Annexure-2 THE TRUE COPY OF SEIZURE MAHAZAR IN CRIME 446/2025 OF CHERPULASERRY POLICE STATION, PALAKKAD.

Annexure-3 THE TRUE COPY OF REMAND REPORT OF PETITIONER AND OTHER ACCUSED.

Annexure-4 THE TRUE COPY OF ARREST MEMO OF THE PETITIONER. Annexure-5 THE TRUE COPY OF SECTION 57 REPORT NDPS ACT ISSUED BY THE POLICE INSPECTOR, CHERPULASHERRY POLICE STATION TO THE SUB DIVISIONAL OFFICER, MANNARKADU.

Annexure-6 THE TRUE COPY OF THE ORDER DATED 25/06/2025 IN CRL. MC. 3231/2025.

Annexure-7 THE TRUE COPY OF THE ORDER DATED 29/07/2025 IN CRL. MC 4087/2025.

TKS