TELANGANA HIGH COURT
Dr. G. Radha Rani, J.
Vishal Manohar Mandrekar – Petitioner
versus
State of Telangana represented by its Public Prosecutor and Anr. – Respondents
Criminal Revision Case No.228 of 2024
Decided on 29.2.2024

IMPORTANT POINT
A person in custody cannot be detained without producing him before a Magistrate under colourable pretention that no actual arrest is made.

Headnote:

Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8(c) read with 22(c), 27 and 29 – Criminal Procedure Code, 1973 – Sections 397 and 401 – Constitution of India – Article 22(2) – Remand of accused to judicial custody – Obtaining a transit warrant is mandatory for police to claim protection under Article 22(2) of Constitution of India – A police officer cannot detain any person in custody without arresting him and any such detention will amount to a wrongful confinement within meaning of Section 340 of Indian Penal Code – A person in custody cannot be detained without producing him before a Magistrate under colourable pretention that no actual arrest is made – Entitlement of petitioner to be released is based on illegality of his arrest for the inability of prosecuting agency to produce petitioner-accused before nearest executive or judicial Magistrate within 24 hours but not based on merits of case – Accused set at liberty on executing a personal bond.

Held:Thus, obtaining a transit warrant is mandatory for the police to claim protection under Article 22(2) of the Constitution of India. The above judgment was rendered on the aspect of granting transit anticipatory bail for a limited duration. It was further held that to maintain the delicate balance between the individual liberties and the difficulties of the Investigating Agency in procuring the presence of the accused persons residing in other states, it was essential to follow the safeguards as mandated under Article 22(2) of the Constitution and the provisions pertaining to Section 57 of Cr.P.C.. The Constitutional bench of the Hon’ble Apex Court in Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565.

The High Court of Bombay at Goa in Mr.Ugochukwu Solomon Ubabuko Vs. Union of India (NCB) (5 supra) which was also pertaining to a case under NDPS Act, while considering whether the ground of violation of Articles 21 and 22(2) of the Constitution could be raised on behalf of the applicant, even if subsequently the order was passed sending the applicant to judicial custody by relying upon the judgment of the Hon’ble Apex Court in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra (2 supra) observed that a coordinate Bench of the Hon’ble Apex Court in Union of India, through Central Bureau of Investigation Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 9 SCC 457 and a three judge Bench of the Hon’ble Apex Court in M Ravindran vs The Intelligence Officer Directorate of Revenue Intelligence, (2021) 2 SCC 485 held the judgment of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra.

The facts of this case are also in consonance with the facts of the above case. The petitioner-A44 raised the ground of illegality of his arrest at the time of his remand before the jurisdictional Magistrate. The Magistrate remanding the petitioner-accused to judicial custody would not frustrate the legislative mandate of producing him within 24 hours of his arrest. As such, the subsequent remand order made by the Magistrate would not legalise the prior detention which was against the constitutional and legal mandate. As such, producing the petitioner-A44 before the Magistrate beyond 24 hours without obtaining any transit warrant is considered as violative of Article 22(2) of the Constitution and the petitioner-A44 is entitled to be released. However, as the entitlement of the petitioner to be released is based on the illegality of his arrest for the inability of the prosecuting agency to produce the petitioner-accused before the nearest executive or judicial Magistrate within 24 hours but not based on the merits of the case and as it was alleged that the petitioner is a drug peddler who was supplying the contraband drugs, it is considered fit to impose certain conditions.

In the result, the Criminal Revision Case is allowed setting aside the order of remand and the accused is set at liberty on executing a personal bond for an amount of Rs.1,00,000/- (Rupees One Lakh Only) with a surety for the like-sum to the satisfaction of the III Additional Chief Metropolitan Magistrate at Hyderabad. He shall appear before the trial/Special Court and also produce proof of his residence and address in the State of Goa and shall give the details of his contact numbers to the Investigating Officer. He shall not indulge in any other cases during his release. Any violation of the above grounds would entail his arrest in accordance with the procedure established under law. (Paras 17, 21, 22 and 23)

Result: Criminal Revision Case allowed.