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2026 Supreme(Ker) 1268
IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
Arun K. Thomas, S/o. Late K.J. Thomas - Petitioner
Versus
Narcotic Control Bureau, Cochin Zonal Unit, Represented by the Sub Inspector - Respondent
Bail Appl. Nos. 14864 of 2025, 693 of 2026, 1161 of 2026, 1422 of 2026, 2601 of 2026, 2852 of 2026
Decided On : 21-08-2026
For the Petitioner: Sri. Shaijan C. George, Shri. Vinai John, Shri. Ajay Ramesh.
For the Respondent: Shri. R. Vinu Raj, Spl. P. P. Narcotics Control Bureau, Sri. V. John Sebastian Ralph, Amicus Curiae.
The 24-hour production requirement under Article 22(2) begins from actual detention without legal sanction. Detention authorized by statutes (e.g., NDPS Act, BNSS) for investigation is lawful and does not constitute arrest; the clock starts only upon formal arrest.
Headnote:(A) Constitution of India - Articles 21 and 22(2) - Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 35, 58, 187 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 42, 43, 50, 67 - Prevention of Money Laundering Act, 2002 - Section 50 - Customs Act, 1962 - Sections 107, 108 - NDPS Disposal Rules, 2022 - Rule 3 - Indian Penal Code, 1860 - Sections 364, 376(2)(j), 302, etc. - Bail - Violation of Article 22(2) - Distinction between arrest and pre-arrest detention - Guidelines.
(B) The right under Article 22(2) to be produced before a Magistrate within twenty-four hours of arrest is an absolute constitutional safeguard. The twenty-four hour period commences from the moment of effective detention when liberty is curtailed without legal sanction. However, pre-arrest detention is permissible where explicitly authorized by statute, such as under Sections 42, 43, 50, 67 of the NDPS Act, Section 179(1) and 35(3) of BNSS, Section 50 of PMLA, Sections 107/108 of Customs Act, and Rule 3 of NDPS Disposal Rules. In such cases, the constitutional clock begins only upon formal arrest. Lawful investigative detention (e.g., during search and seizure, examination under summons) does not amount to arrest or illegal detention.
(C) In the absence of statutory authorization, any deprivation of liberty prior to formal arrest must be treated as part of the detention period, and the twenty-four hour timeline for judicial oversight is triggered at that point. Violation of Article 22(2) renders the arrest illegal and entitles the accused to bail. Additionally, the court issued guidelines for detention and arrest procedures, including mandatory documentation of initial apprehension time, immediate communication of grounds of arrest, and judicial verification by the Magistrate.
Facts of the case:
This batch of six bail applications involved accused persons in cases under the NDPS Act (five) and IPC (one). They contended that they were effectively detained before formal arrest and produced before the Magistrate beyond twenty-four hours from such detention, violating Article 22(2). The prosecution argued that the pre-arrest detention was lawful under specific statutory provisions.
Findings of Court:
The court examined each case. In four NDPS cases and the IPC case, the pre-arrest detention was found to be in accordance with statutory procedures (e.g., compliance with Sections 42, 43, 50, 67 of NDPS Act or equivalent under Cr.P.C./BNSS for investigation). Therefore, the twenty-four hour period commenced from formal arrest, and production was timely. However, in one NDPS case, the remand report did not show any statutory basis for pre-arrest detention, indicating illegal custody. Consequently, that applicant's continued detention violated Article 22(2) and BNSS, entitling him to bail. The court also rejected a belated plea regarding non-communication of grounds of arrest as not raised earlier.
Issues: (1) Whether the twenty-four hour period under Article 22(2) commences from the moment of actual detention or only from formal arrest? (2) When is pre-arrest detention lawful and does not trigger the constitutional clock? (3) Whether each applicant's pre-arrest detention was statutorily authorized?
Ratio Decidendi: The constitutional mandate under Article 22(2) is triggered by detention that is not authorized by law. Detention authorized by specific statutory provisions (such as those under NDPS Act, BNSS, PMLA, Customs Act) for investigative purposes does not constitute arrest, and the twenty-four hour production requirement applies only upon formal arrest. In the absence of such statutory authorization, any restraint of liberty prior to formal arrest must be counted towards the twenty-four hour period. The court must assess the facts to determine whether pre-arrest detention was lawful.
Result: BA No.2601/2026 allowed and the applicant ordered to be released on bail with conditions; BA Nos.14864/2025, 693/2026, 1422/2026, 1161/2026, and 2852/2026 dismissed.
ORDER :
The applicants in this batch of bail applications seek regular bail, primarily invoking the alleged infraction of Article 22(2) of the Constitution of India and Section 58 (57 of Cr.P.C.) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS).
Introductory Background
2. While the applicants in BA No.14864/25, BA No. 693/26, BA No. 1422/26, BA No.2601/26, and BA No.2852/26 stand accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), the applicant in BA No.1161/26 faces prosecution under Sections 364, 354B, 354A(2),376(2)(j), 302, 392, 394, 118 and 201 of the Indian Penal Code, 1860. Their principal contention is that they were subjected to detention well before the formal recording of arrest and were produced before the Magistrate beyond twenty-four hours from the time of such detention, though within twenty-four hours of the recorded arrest, thereby infringing the constitutional and statutory safeguards guaranteed to them. Reliance was placed heavily on the recent decision of this Court in Biswajit Mandal v. Inspector, Narcotic Control Bureau [2025 (5) KHC 361], wherein it was held that the twenty-four hour period for production before the Magistrate commences not from the time of formal arrest but from the point at which the accused was effectively detained or his liberty curtailed. On the strength of the said dictum, it is urged that since the applicants remained in custody beyond the permissible twenty-four hour period, they are entitled to bail. Per contra, the prosecution contended that the principle laid down in Biswajit Mandal (supra) cannot be mechanically extended to every instance of pre-arrest detention, inasmuch as detention in custody without arrest is permissible under law. It is submitted that the applicants’ detention prior to the recording of arrest was in accordance with procedure established by law and cannot be equated with the ‘illegal detention’ found on facts in Biswajit Mandal (supra).
3. Considering the importance of the issue involved, I have appointed Sri. John S. Ralph as Amicus Curiae. I have heard Sri.Shaijan C.George, Sri.P.C.Muhammed Noushiq, Sri.Hasif Iqbal, Sri.M.Devesh, Sri.Sarath Babu Kottakkal and Sri.K.K.Subeesh the learned counsel for the applicants, Sri.Thomas Sabu Vadakekut, the learned Public Prosecutor, Sri.R.Vinu Raj, the learned Special Public Prosecutor for Narcotic Control Bureau and Sri.John S.Ralph, the learned Amicus Curiae.
Applicants' contentions
4. The learned counsel for the applicants submitted that in all the crimes, the applicants were produced beyond twenty-four hours of their actual detention, in violation of Article 22(2) of the Constitution, rendering their arrest illegal. According to the counsel, the moment personal liberty and freedom of movement are restrained by placing a person in the custody of an authority vested with the power of arrest, such restraint must be deemed an arrest within the meaning of Section 35 of the BNSS. Consequently, production before the Magistrate must follow within twenty-four hours from the time of such detention. It was urged that physical custody marks the commencement of the constitutional clock, and any investigative use of the pre-production period renders the detention unlawful. It was further contended that the applicants were in actual physical custody of the police much prior to the official recording of arrest.
Prosecutors' stand
5. The learned Public Prosecutor, on the other hand, submitted that the right under Article 22(2) arises only in cases of illegal detention, which was not the situation here. They argued that mere custody for purposes of enquiry, interrogation or investigation, when undertaken in accordance with law, does not amount to arrest, even though it involves restraint of the person concerned.
Amicus Curiae's Thoughts
6. The learned Amicus Curiae made the following submissions:-
• Arrest is a prerequisite for detention when it comes to an offence. The requirem
