ORDER :

R.VIJAYAKUMAR, J.

The present petition has been filed by Accused No.3 in Crime No.395 of 2024 on the file of the respondent police seeking to set aside the order of remand of the Judicial Magistrate, Melur dated 10.10.2024.

(A).Factual Matrix:

2.The petitioner herein is arrayed as 3^rd accused in Crime No.395 of 2024 on the file of the respondent police for the alleged offences under Sections 8(c), 20(b)(ii)(c), 25 and 29(1) of Narcotic Drugs & Psychotropic Substances Act, 1985. The F.I.R has been registered on 09.10.2024.

3.As per arrest memo, the petitioner was arrested at 6.30 p.m on 09.10.2024 and produced before the Judicial Magistrate, Melur at 5.30 p.m on 10.10.2024 and he was remanded to judicial custody. This order of remand is under challenge on the following grounds:

a)Though arrest memo has been issued to the petitioner herein, it does not contain the grounds of arrest and therefore, it is defective.

b)The petitioner was detained at 5.00 p.m on 09.10.2024 even as per the allegation in the F.I.R. However, the arrest memo shows that the petitioner was arrested only at 6.30 p.m on 09.10.2024. Calculating 24 hours from 6.30 p.m on 09.10.2024, the petitioner has been produced before the Jurisdictional Magistrate only at 5.30 p.m on 10.10.2024 and accepting the same, an order of remand has been passed. The period of 24 hours has to be calculated from the time of detention and not from the time mentioned in the arrest memo after formal arrest. Therefore, the petitioner, having been produced before the Jurisdictional Magistrate after 24 hours, the order of remand is vitiated and therefore, liable to be set aside.

(B).Submissions of the learned counsel appearing on either side:

4.The learned counsel appearing for the petitioner had relied upon two decisions of Kerala High Court reported in 2025 SCC Online Ker 6017 (Biswajit Mandal Vs. Inspector, Narcotic Control Bureau) and 2025 SCC Online Ker 6682 ( Ganesh Vs. Narcotics Control Bureau, Represented by Special Public Prosecutor) and contended that the calculation of 24 hours for production before the Jurisdictional Magistrate has to be calculated only from the time of detention by the police authorities and not from the time of formal arrest mentioned in the arrest memo.

5.The learned counsel for the petitioner had also relied upon a decision of the Hon'ble Supreme Court reported in 2025 SCC Online SC 240 ( Directorate of Enforcement Vs. Subhash Sharma), especially paragraph No.6 and contended that in a case arising out of Prevention of Money Laundering Act, 2002, the Hon'ble Supreme Court was pleased to hold that the time at which the physical custody of the accused was taken, has to be reckoned for the purpose of calculating 24 hours and not the time at which formal arrest was shown. He also relied upon a decision of the High Court of Telangana at Hyderabad reported in 2024 SCC Online TS 4288 ( T.Ramadevi Vs.State of Telangana, rep.by its Principal Secretary and others) especially paragraph Nos.11 and 12 and contended that the arrest of a person commences from the time restraint is placed and not from the time of the arrest officially recorded by the arresting officers.

6.The learned counsel for the petitioner has also relied a decision of the Hon'ble Supreme Court reported in (2025) 5 SCC 799 ( Vihaan Kumar Vs. State of Haryana and another) especially Paragraph No.21 and contended that once the arrest is unconstitutional due to violation of Article 22(1) of Constitution of India, the arrest itself is vitiated and therefore, continued custody of such a person based on orders of remand is also vitiated. Relying upon the said judgement, the learned counsel for the petitioner had pointed out that filing of a charge sheet and order of cognizance will not validate an arrest which is perse void and unconstitutional.

7.The learned counsel appearing for the petitioner also relied upon the decisions of the Hon'ble Supreme Court reported in (2024) 8 SCC 254 ( Prabir Purkayastha Vs. State