Dr. Justice Kauser Edappagath, while considering a batch of bail applications, further clarified that an accused has to be produced before the Magistrate only within 24 hours of formal arrest, and not actual physical custody, if pre-arrest detention is permitted by law.

The Court observed:

“Pre-arrest detention is permissible where explicitly authorised by statute—such as under Sections 179(1) and 35(3) of BNSS (160(1) and 41-A of Cr.P.C), Sections 67, 42, 43 and 50 of the NDPS Act, Rule 3 of the NDPS Disposal Rules, Section 50 of the PMLA, or Sections 107 and 108 of the Customs Act—which provide a clear procedural framework for enquiry or limited restraint of liberty. In such cases, the reckoning of the twenty-four hours begins only upon formal arrest. In all other circumstances, any deprivation of liberty prior to arrest must be treated as part of the detention period, and the statutory timeline for judicial oversight is triggered at that point.”

It also laid down various guidelines to investigating agencies, including mandatory notice for detention, recording of precise time of detention as well as formal arrest, communication of arrest grounds to arrestee and relative, friend or nominated person, transmission of case records and accused to magistrate when investigation not completed within 24 hours, etc.

Section 179 BNSS empowers the investigating officer to summon any person acquainted with the facts of a case. Section 35 BNSS lists out the situations in which the police may arrest a person without warrant.

Section 42 NDPS Act provides for empowers authorized officer to entry, search, seizure and arrest without warrant or authorization whereas Section 43 is regarding seizure and arrest in public place. Section 50 deals with conditions under which search of a person can be conducted. Section 67 provides for the officer to call for information from any person, production of document, etc.

Rule 3 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 prescribes the procedure for classification, weighing, packaging and numbering of seized contraband and the Court clarified that such restraint or detention during seizure does not ipso facto amount to arrest.

Section 50 PMLA empowers the officers of the Enforcement Directorate to issue summons requiring attendance of any person for evidence. Sections 107 and 108 of the Customs Act, 1962 give power to Customs Officers to summon any person for an enquiry under the Act.

Facts

In 5 cases, the petitioners were accused under the NDPS Act [Narcotic Drugs and Psychotropic Substances Act, 1985]. In one case, the offences alleged are those under the Indian Penal Code, including rape and murder.

Petitioners' contentions

All the bail applications had raised a ground that the safeguards under Article 22(2) of the Constitution as well as Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) were violated in their arrests.

According to them, they were detained by the police before their formal arrest was recorded and they were entitled to be enlarged on bail since they were produced only within 24 hours of their formal arrests and not their actual periods of detention, violating the safeguards under law. Reliance was placed on the decision in Biswajith Mandal v Inspector, Narcotic Control Bureau wherein it was held that the 24-hour deadline for producing an accused before a magistrate begins from the moment a person's liberty is effectively curtailed, rather than from the time police formally records the arrest.

Prosecution's arguments

The prosecutors argued that the constitutional right under Article 22(2) arises only where there is illegal detention and not in cases where police took custody for interrogation or investigation as statutorily permissible.

Amicus curiae's submissions

Among other submissions, it was stated that detention before formal arrest defeats the constitutional and statutory safeguards. However, when it is statutorily authorized, pre-arrest detention is permissible.

He further pointed out that temporary restraint for investigation purposes during search and seizure as provided under the NDPS Act or custody after issuance of summons under BNSS, Customs Act or the Prevention of Money Laundering Act does not violate the safeguards as these come within “procedure established by law”.

Court's findings

After hearing the parties, the Court referred to Sections 35 and 58 BNSS (Sections 41 and 57 CrPC) as well as the precedents laid down by the Apex Court. It remarked that production of an arrestee within 24 hours before a Magistrate is a mandate with only few exceptions: where arrestee is an enemy alien; when arrest is under prevention detention law; and excluding time for transporting accused from place of arrest to the Magistrate.

Arrest v. Detention

The Court also clarified the distinction between arrest and detention, and observed that the constitutional and statutory safeguards are there only upon arrest. It added:

“various statutes, including the BNSS/Cr.P.C., recognise exceptional circumstances where detention may be authorised without a formal arrest, pursuant to procedures established by law… The twenty-four hour reckoning begins from the moment of arrest, not from the period of voluntary attendance. Any attempt to conflate attendance with arrest would dilute the distinction between investigative cooperation and custodial restraint, a distinction which the Constitution and the Code scrupulously preserve.”

Permissible pre-arrest detention

The Court listed out various statutorily provisions that allow pre-arrest detention, including Sections 67, 42 and 50 of the NDPS Act; Section 50 PMLA Act; Sections 107 and 108 of the Customs Act and Section 179(1) of the BNSS (Section 160(1) CrPC).

Explaining the different between detention for enquiry and custodial arrest, the Court added:

“The distinction between investigative detention for purposes of enquiry and custodial arrest is critical: the former permits temporary restraint under statutory authority, while the latter alone attracts the full panoply of custodial safeguards, including the commencement of the twenty-four hour reckoning for production before a Magistrate. These statutory schemes underscore the legislature's careful balance between investigational necessity and the protection of fundamental rights. Compliance with prescribed procedure is the very essence of Article 21; any restraint imposed dehors statutory authority or without adherence to procedural safeguards degenerates into illegal detention.”

Guidelines Issued

The Court issued various guidelines to ensure that constitutional and statutory guarantees in the case of arrests are duly enforced. It also directed the Registry to send a copy of its order to the State Police Chief as well as all the criminal courts in Kerala for due compliance.

1. Mandatory notice for detention – The Court clarified that any detention for the purpose of investigation must follow only after issuance of prior statutory notice to ensure that there is no arbitrary restraint on liberty and to satisfy the requirement of “procedure established by law” under Article 21.
2. Documentation of initial apprehension – The investigating agencies are directed to record the times of initial detention or apprehension as well as formal arrest to secure transparency, prevent manipulation of timelines and to provide “constitutional basis for computing the twenty-four hour mandate under Article 22(2).”
3. Production before magistrate – The arrestee must be produced within 24 hours of detention excluding travel time and the time of arrest as well as time of production must be documented.
4. Communication of arrest grounds – The grounds of arrest must be communicated to the arrestee as well as his relative, friend or nominated person. “An entry to this effect specifying the exact time of such communication shall be made in the case diary, thereby safeguarding against coercion and ensuring compliance with constitutional jurisprudence,” it added.
5. Transmission of accused and case records – In cases where investigation cannot be completed within 24 hours, the case records along with the accused must be immediately transmitted to the Magistrate. This measure would prevent unlawful detention while also ensuring that extension of custody is lawful and justified, it added.
6. Transit remand requirement – In cases where arrest must be effected outside jurisdiction, the police is required to secure a transit remand to transport the accused to the jurisdiction magistrate. Without such an authorization, production beyond 24 hours would be violative of Article 22(2), the Court clarified.
7. Judicial check post – The Court observed that Magistrate before whom an accused is produced must ensure that there is compliance with Article 22(1) and (2) and Sections 47 and 48 of the BNSS and when it is violated, the accused has to be released.
   

“The Magistrate functions as the constitutional sentinel, obliged to verify whether constitutional and statutory safeguards have been honoured and to ensure that detention has not exceeded the limits contemplated under Article 22(2) of the Constitution and Section 58 of the BNSS…The Magistrate must state explicitly in the remand order regarding the compliance/non- compliance of Article 22(1) and 22(2) of the Constitution and Sections 47, 48 and 58 of the BNSS,” it added.

In all cases except one, the Court was of the view that bail need not be granted since there were no procedural infractions. In one of the cases, the Court granted bail to the accused after noting that there was illegal detention much before the formal arrest.

Case No: BA No.14864/2025 & connected cases

Case Title: Arun K. Thomas v. Narcotic Control Bureau & connected cases

Citation: 2026 LiveLaw (Ker) 463

Counsel for the petitioners: Shaijan C. George, Vinai John, Ajay Ramesh, P.C. Muhammed Noushiq, Hasif Iqbal K., M. Devesh, M. Anuroop, Murshid Ali M., Jyothis Mary, S.K. Sreelakshmu, Akshay Joy, Sarath Babu Kottakal, Sebastin, Mohammed Ashil P.K., K.K. Subeesh, Sradha Mohan

Counsel for the respondents: R. Vinu Raj – Special Public Prosecutor, Thomas Sabu Vadakekut - Public Prosecutor,

Amicus Curiae: V. John Sebastian Ralph

Click to Read/Download Order