Detention begins when liberty is curtailed; 24-hour production runs from effective detention, not from recorded arrest.

ORDER

When does the twenty four hour period to produce an accused before the Magistrate commence? Does it start from the time of arrest as recorded by the police or from the time when the accused was detained? These questions are addressed in this application seeking regular bail filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 .

2. Petitioner is the accused in Crime No.2 of 2025 of the Narcotics Control Bureau, Cochin Zonal Unit, alleging offences punishable under section 8(c) r/w section 20(b)(ii)(C), 28 and section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

3. Prosecution alleges that on 25.01.2025, the accused was found in possession of 26.92 Kg of ganja from platform No.3 of Ernakulam Junction Railway Station and thereby committed the offences alleged. Petitioner has been in custody since 26.01.2025.

4. I have heard Adv. Fathima Sulfath N.B., on behalf of the petitioner and Sri. R. Vinu Raj, the learned Special Public Prosecutor on behalf of the respondents. Considering the importance of the question involved, and on noticing the commitment with which two law interns were watching the proceedings, this Court deemed it fit to seek their assistance. The two interns who were present in Court expressed their willingness and hence this Court appointed Ms. Nikhina Thomas and Ms. Neha Babu, second year students of Ramaiah College, Bengaluru, as Amici Curiae to assist the Court.

5. Smt. Fathima Sulfath N.B., the learned counsel for the petitioner, contended that petitioner’s arrest, pursuant to the alleged detection of possession of contraband, is vitiated on account of the failure to communicate the grounds for arrest as contemplated by law. Apart from the above, the learned counsel submitted that petitioner was detained in custody beyond the period of twenty-four hours in violation of the constitutional and statutory prescriptions and hence he ought to be released on bail. Relying upon the circumstances of the case where the petitioner was taken into custody at 3 pm on 25.01.2025 while his arrest was recorded at 2.00 pm on 26.01.2025 and produced before the Magistrate only at 8.00 pm on 26.01.2025, it was submitted that the arrest was in violation of Article 22(2) of the Constitution and hence petitioner ought to be released on bail.

6. Sri. R. Vinu Raj, the learned Special Public Prosecutor, on the other hand, contended that the seizure was completed by 7.00 pm on 25.01.2025, and the petitioner was arrested at 2.00 pm on 26.01.2025, and he was produced before the Magistrate by 8.00 pm, all having been done within twenty-four hours, there is nothing illegal in the arrest.

7. Ms. Nikhina Thomas and Ms. Neha Babu, the Amici Curiae, argued in their well articulated address supported by an equally thorough argument note, that the twenty-four hour clock for production of a person before the Magistrate begins from the moment of effective curtailment of liberty and not from the formal recording of arrest. Referring to the sequence of events in the instant case, it was submitted that the mahazar dated 25.01.2025 indicates that petitioner was produced before the Magistrate beyond the period of twenty-four hours and hence there has been an unrecorded period of custody, which indicates illegal detention. The Amici curiae invited the attention of this Court to the decisions inD.K. Basu v. State of W. B. [ (1997) 1 SCC 416 ] andJoginder Kumar v. State of U.P. and Others [ (1994) 4 SCC 260 ] and submitted that the delay in formally recording the arrest within time and production before the Magistrate rendered the petitioner’s arrest in violation of the procedure established by law. The Amici Curiae also submitted that the delay in formally recording the arrest, despite the accused being in custody from 25.01.2025, constitutes an unrecorded period of custody, and the time for production of the accused