Not Producing Accused Before Magistrate Within 24 Hrs Renders Arrest Illegal; Rearrest From Prison Premises Impermissible: Kerala High Court
The Kerala High Court recently exercised its inherent power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita to set aside a remand order and to grant bail to an NDPS accused.Justice C.S. Dias observed that since the accused was not brought before the jurisdictional magistrate within the 24-hour period mandated by Article 22(2) of the Constitution, his arrest stood vitiated and he...
The Kerala High Court recently exercised its inherent power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita to set aside a remand order and to grant bail to an NDPS accused.
Justice C.S. Dias observed that since the accused was not brought before the jurisdictional magistrate within the 24-hour period mandated by Article 22(2) of the Constitution, his arrest stood vitiated and he ought to have been granted bail.
Noting that the Sessions Court had not granted him bail even though it had observed that his arrest was illegal, the High Court opined that his subsequent re-arrest from prison premises was impermissible and amounted to violation of constitutional safeguards.
The plea before the Court was preferred by a person arraigned as the 2nd accused for allegedly committing the offences under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The two accused were arrested at 12:55 hours on 20.07.2025 for allegedly possessing around 300 gms of MDMA. The petitioner was produced before the Magistrate after the 24-hour window mandated by Article 22(2) of the Constitution, at 14:10 hours the next day.
The petitioner came before the Sessions Court requesting for bail and in its order, the Sessions Court found that the petitioner was not produced before the Magistrate on time. However, the Sessions Court did not enlarge him on bail but only ordered the Jail Superintendent to release him.
Immediately on his release, the petitioner was re-arrested on the precincts of the prison, produced before court and remanded to judicial custody. Aggrieved, he came before the High Court challenging the remand order.
The petitioner relied on Directorate of Enforcement v. Subhash Sharma to contend that since his arrest was vitiated, he ought to have been enlarged on bail by the Sessions Court. The prosecutor, on the other hand, opposed the plea and argued that as per Section 483(3) BNSS, the Police is empowered to re-arrest the petitioner. Bail can only be granted to the petitioner if he satisfies the twin conditions under Section 37 NDPS Act, the prosecution contended.
As per the provision, the conditions for granting bail are: (1) There are reasonable grounds to believe that the accused is not guilty of the offences alleged, and (2) He will not commit any offence while on bail.
Examining the facts of the case, the precedents set by the Apex Court and Article 22, the Court remarked that the petitioner's first arrest was vitiated and his subsequent re-arrest amounted to circumvention of the constitutional safeguard.
“the petitioner was produced before the Magistrate beyond the twenty-four-hour deadline, which is peremptory and sacrosanct. Although the learned Sessions Judge found this breach, he erred by not enlarging the petitioner on bail. This enabled the Police to subvert the constitutional safeguard by arresting the petitioner from the precincts of the prison...," the Court observed.
Referring to the Session Court's order that directed the petitioner to be released without granting him bail, the High Court further observed:
"The above action warrants interference to undo the consequences of an arrest that stands vitiated. In light of the constitutional violation of Article 22(2) and the findings rendered above, this is a fit case to exercise the inherent powers of this Court under Section 528 of the BNSS and set aside...remand order, and order the petitioner to be enlarged on bail.”
The Court then set aside the remand order. With respect to the Session Court's order that had recorded the arrest to be illegal, the High court modified the same to enlarge the petitioner on bail on conditions.
Case No: Crl.MC No. 9946 of 2025
Case Title: Muhammed Nashif U. v. State of Kerala and Anr.
Citation: 2025 LiveLaw (Ker) 774
Counsel for the petitioner: P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Alwin Joseph, Benson Ambrose
Counsel for the respondents: M.P. Prasanth – Public Prosecutor