Sujit Das vs Union Of India

2026 INSC 1195


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NOS. OF 2026
(Arising out of Special Leave Petition (Criminal) Nos.
12451-12453 of 2026)



SRI SUJIT DAS AND ORS. ETC. APPELLANT(S)



VERSUS

UNION OF INDIA RESPONDENT(S)


J U D G M E N T


UJJAL BHUYAN, J.

Leave granted.
2. This batch of appeals take exception to the common
judgment and order dated 29.04.2026 passed by the High Court
Signature Not Verified
Digitally signed by
ABHINAV KUMAR
Date: 2026.11.05
14:33:28 IST
Reason:
of Tripura at Agartala (briefly, ‘the High Court’ hereinafter),
dismissing the regular bail applications of the appellants.

3. Sri Sujit Das, Sri Suman Das and Sri Rupak Sarkar
are the three appellants before us. Smt. Ratna Das had filed
Bail Application No. 72/2026 before the High Court on behalf
of the accused Sri Sujit Das. Sri Sanjit Das filed Bail Application
No. 74/2026 before the High Court on behalf of accused Suman
Das. Likewise, Sri Dipak Sarkar had filed Bail Application No.
75/2026 before the High Court on behalf of accused Rupak
Sarkar. All the three Bail Applications were heard together and
disposed of by the High Court vide the common judgment and
order dated 29.04.2026 (‘impugned judgment’ hereinafter)
rejecting the prayer made on behalf of the accused, who are the
appellants before this Court.
4. Be it stated that the appellants are accused in Case
No.04/CL/NDPS/DPF/AGT/2025-26, registered under Sections
21(C)/22(C)/23(C)/25/25A/28 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (briefly ‘the NDPS Act’
hereinafter).
5. Prosecution case, in brief, is that on the basis of a
secret information, Sri Rahul Sharma, Inspector, Divisional
2

Preventive Force (DPF), Customs Division, Agartala, constituted
a team to carry out an ambush on 29.09.2025, at around 08:00
am at a place which is 6 kilometers away from Khowai
Chowmuhani. The secret information was that three persons
were travelling in a truck and proceeding towards Agartala
carrying narcotic/psychotropic substances. At around 09:05
am, the suspected vehicle bearing registration No. TR-06-1767
arrived at the place where the ambush was set up. The
Inspector found that there were three occupants in the said
truck including the driver. Inspector Rahul Sharma followed the
said truck along with his team and, at around 01:00 pm,
another person came on a motorcycle and met the occupants of
the truck at a place called Shanitala Noabadi. They handed over
one white coloured plastic sack to the person who came on a
motorcycle after taking it out from the truck. At that point of
time, all the four of them were detained by the search team and
a total 11.03 Kg. of methamphetamine (Yaba) tablets were
recovered. After re-checking of the vehicle, two trolly bags were
further recovered, which were hidden deep under the sacks
containing ginger on the cargo bed of the truck. Upon opening
3

of each of the trolly bags, the officer recovered brown packets.
When those brown packets were opened, blue and black plastic
sachets containing small pink tablets with a pungent smell,
believed to be Yaba, were found. Inspector Rahul Sharma then
completed all the seizure related procedural formalities and
arrested the four persons i.e. the three occupants of the truck
and the person who arrived at the scene on a motorcycle. These
four persons include the three appellants and one Sri Raju Das.
The accused persons were arrested on 30.09.2025 and since
then they have been in custody.
6. Before the High Court it was argued on behalf of the
accused persons that there was violation of the mandatory
provision of Section 36 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (briefly, “BNSS” hereinafter), which would
override the embargo of Section 37 of the NDPS Act. Section 36
is only a statutory exposition of the Constitutional norm
provided under Article 21 of the Constitution of India. Article 21
would override Section 37 of the NDPS Act. Learned counsel for
the respondent admitted that the signature of the near relative
4

of the arrested accused persons, or of any respectable person
from the locality, was not obtained in the arrest memo; prima
facie, there was violation of Section 36 of BNSS by the arresting
officer. However, given the embargo of Section 37 of the NDPS
Act, the accused persons would still not be entitled to bail even
if there is violation of Section 36 of BNSS.
7. Referring to the decision of this Court in the case of
1
State of Punjab versus Sukhwinder Singh @ Gora , the High
Court observed that the provisions of Section 37 of the NDPS
Act are mandatory. An order granting bail without recording
satisfaction in terms of Section 37 would stand vitiated and
cannot be sustained. The rights of an accused under Article 21
of the Constitution of India must be exercised within the
framework of Section 37 of the NDPS Act. Referring to the facts
of the present case, the High Court observed that there are
prima facie materials against the accused persons. Therefore,
the rigor of Section 37 of the NDPS Act are not satisfied.

1
2026 SCC Online SC 671
5

Consequently, the bail applications moved on behalf of the
accused persons were rejected.
8. On 24.07.2026, this Court had issued notice,
pursuant to which the respondent has filed counter affidavit.
9. In the counter affidavit, the respondent has narrated
the facts in a chronological order. It is stated that on 29.09.2025,
at about 06:00 am, the complainant-cum-seizing and arresting
officer received credible secret information that substantial
quantity of methamphetamine tablets, a psychotropic substance
under the NDPS Act, was being illicitly transported from
Kumighat to Agartala in a vehicle (truck) bearing registration No.
TR-06-1767, concealed in a consignment of ginger. The
information indicated that the vehicle was expected to reach
Agartala before 04:00 pm and that the contraband was likely to
be handed over to another person at Rastarmath, Bishalgarh. The
information was reduced into writing and intimated to the
Superintendent, DPF unit, who issued requisite search
authorization. Pursuant thereto, a search team was constituted.
The search team was equipped with the search and seizure
6

articles, including digital weighing machine, field drug testing kit,
stationery, torch and lathis.
9.1. On the same day i.e. on 29.09.2025, at about 08:00
am, the search team reached Khowai Bazar, where two
bystanders were apprised of the secret information regarding
illicit transportation of psychotropic substances, commonly
known as ‘Yaba tablets’ from Kumighat towards Agartala, kept
concealed in a consignment of ginger. The two bystanders
accepted the request to act as independent witnesses to the
proposed interception and the search and seizure operation.
9.2. The search team proceeded 6 Kilometers from
Khowai Chowmuhani towards Agartala and laid an ambush. At
about 9:05 am, the vehicle was sighted, whereafter the search
team discretely followed the same. At about 01:00 pm, in the
Shanitala Noabadi area, a person, who was subsequently
identified as Sri Sujit Das, arrived on a Bajaj Pulser motorcycle
bearing registration No. TR-01-AR-7045 and approached the
said vehicle (truck). The driver of the truck, Raju Das, with the
assistance of the other two occupants i.e. Suman Das and
7

Rupak Sarkar, opened the cargo bed, climbed into it and came
out with a white muddy coloured plastic sack and handed over
the same to Sujit Das. The search team thereupon intercepted
the vehicle (truck) and the persons present. Upon opening the
said sack and subsequently the ginger consignment, small
packets wrapped in brown paper and containing black and blue
plastic sachets filled with pink-coloured tablets suspected to be
Yaba tablets, were recovered.
9.3. The three occupants of the truck were identified as
Raju Das, Suman Das and Rupak Sarkar, while the bike rider
was identified as Sujit Das.
9.4. In the presence of independent witnesses, a
preliminary field test of the recovered substances was
conducted by using the field narcotic test kit, which yielded a
positive result for methamphetamine. The recovered material
was thereafter weighed on an electronic weighing scale and was
found to have gross weight of 11.03 Kg. Upon forming a
reasonable belief that the recovered substance was a
psychotropic substance viz. methamphetamine (Yaba) tablets,
8

the white muddy coloured sack containing the packets of
contraband was seized along with the Bajaj Pulser motorcycle.
Seizure memo was duly prepared and NDPS Case No.
04/CL/NDPS/DPF/AGT/2025-26 was registered on 29.09.2025;
the truck bearing registration No. TR-06-1767 and the ginger
consignment were also seized.
9.5. Owing to the large quantity of goods that required to
be unloaded and the gathering of a crowd at the spot, the
accused persons, independent witnesses and the seized articles
were brought to the office of the Customs Division for further
proceedings. Upon examination of the ginger consignment at
the Customs Divisional office, additional trolly bags containing
Yaba tablets, deeply hidden below the sacks of ginger on the
cargo bed of the truck were recovered. In the presence of the
independent witnesses and the accused persons, separate
preliminary field tests were conducted, followed by seizure of
the additional contraband i.e. the second seizure, for which a
separate seizure memo was prepared in the presence of the
same witnesses. The total quantity of Yaba tablets recovered
9

and seized was found to be 60.79 Kg. The tablets were concealed
in one white muddy coloured plastic sack (11.03 Kg.), one
purple coloured Flyking bag (32.37 Kg.) and one red coloured
trolly bag (17.39 Kg.).
9.6. On 30.09.2025, the accused persons were arrested
under Section 42(1)(d) of the NDPS Act for offences under
Sections 8(C) and 9A, punishable under Sections 21(C), 22(C),
23(C), 25, 25A, 28 and 29 thereof. The grounds of arrest were
duly communicated to the accused persons and their family
members. On 27.03.2026, charge-sheet was filed.
9.7. All the four accused persons preferred bail
applications before the learned Special Judge, West Tripura,
Agartala. However, vide order dated 30.03.2026, their bail
applications were rejected by the learned Special Judge
whereafter they moved the High Court.
9.8. The High Court also rightly rejected the bail prayer of
the accused persons by placing reliance on the decision of this
Court in Sukhwinder Singh @ Gora .
10

10. In the course of hearing on 21.09.2026, an important
issue cropped up, which, it appeared, had not been argued
before the High Court. Mr. Rouf Rahim, learned senior counsel
for the appellants pointed out that the FIR is dated 29.09.2025
and that around 02:30 pm of that day all the four accused
persons were intercepted and seizure was carried out in the
presence of the witnesses, but the accused persons were shown
arrested on 30.09.2025 at 11:15 am. The contention of Mr. Rouf
Rahim is that this was done to circumvent the time-frame of 24
hours, as mandated in terms of clause (2) of Article 22 of the
Constitution of India as the accused were produced before the
Magistrate at around 05:00 pm of 30.09.2025. In the aforesaid
backdrop, we directed the Investigating Officer to file a specific
affidavit on this point.
11. Pursuant to the aforesaid order of this Court dated
21.09.2026, the Investigating Officer has filed a compliance
affidavit. The dates mentioned in this affidavit are important.
Therefore, we would like to record the averments made by the
Investigating Officer in this compliance affidavit in detail.
11

11.1. As per the compliance affidavit, detention of the
accused persons took place only upon them being formally
arrested at 11:00 am and 11:15 am, respectively on 30.09.2025.
This was because the period preceding the formal arrest was
required to complete the statutory formalities.
11.2. The process of search and seizure was completed at
05:00 pm on 29.09.2025. The accused persons were thereafter
taken into judicial custody on 30.09.2025 at 04:45 pm
Therefore, reckoning the commencement of detention either
from 05:00 pm on 29.09.2025, or 11:00 am/11:15 am on
30.09.2025 would not violate the mandate of 24 hours as
prescribed under Article 22(2) of the Constitution of India.
11.3. The preliminary seizure of the contraband took place
at the place of interception in the presence of the accused
persons and the independent witnesses on 29.09.2025, which
led to recovery of 11.03 Kg. of methamphetamine (Yaba) tablets.
11.4. Second seizure took place thereafter upon reaching
the office of the Customs Division, Agartala, which led to the
recovery of additional quantity of 49.76 Kg. of methamphe-
12

tamine (Yaba) tablets. The second seizure procedure was
completed at 05:00 pm on 29.09.2025. The total recovery of
both the seizure was 60.79 Kg, which is thousand times more
than the prescribed commercial quantity (50 grams) of
methamphetamine (Yaba) tablets.
11.5. The Investigating Officer has explained that the
accused persons were merely intercepted at 02:00 pm on
29.09.2025 and not formally detained. The intervening hours
were required to complete the mandatory statutory formalities
under the NDPS Act, such as,:
(a) conducting search and seizure, which required serving
of notice under Section 50 of the NDPS Act, arranging
a gazetted officer and conducting the actual search;
(b) weighing, which included weighing of the seized
contraband, preparing the detail seizure memo in the
presence of the independent witnesses and the
accused persons, making samples for testing in the
testing kits;
13

(c) interrogation to trace the supply chain, which
included the questioning of the four accused persons
to ascertain the source of the contraband, their
forward/backward linkages and their identities before
formally arresting them; and,
(d) administrative and travelling delays.
11.6. It is stated that the place of interception is remote
and far away from the office of the respondent. Therefore, the
time taken to travel from the place of interception to the office,
the time taken to lodge the formal report and to complete the
initial entries contributed to the delay in formal arrest. The
formal arrest memos could only be prepared on 30.09.2025 at
11:00 am/11:15 am after the preliminary paper work establishing
a prima facie case against each of the accused persons was
completed.
11.7. Elaborating further, it is stated that as per the
complaint, on 29.09.2025 at 02:30 pm, all the accused persons
were formally questioned for additional contraband. Following
14

their confession, further search was conducted, which led to
discovery of more psychotropic substances.
11.8. The first seizure memo records the time of seizure as
02:00 pm at Shanitala Noabadi. The second seizure memo
specifically records the place of seizure as Customs Division,
Agartala, and the time of seizure as 05:00 pm on 29.09.2025.
11.9. All the accused persons, who were offered the choice
to be searched before a Judicial Magistrate or a gazetted officer,
opted for a gazetted officer, whereupon the Investigating Officer
found reasonable grounds to believe that all the accused
persons were in conscious possession of the contraband with
an intent to traffic in violation of the NDPS Act.
11.10. Accordingly, Sujit Das was formally arrested on
30.09.2025 at 11:00 am in the office of the Deputy
Commissioner, Customs Division, Agartala, under Section
42(1)(d) of the NDPS Act. Similarly, Raju Das, Suman Das and
Rupak Sarkar were arrested on 30.09.2025 at 11:15 am. The
grounds of arrest were explained to them in Bengali language
15

and they were also informed of their rights, including
counselling of lawyer and informing their relative(s).
12. Mr. Rouf Rahim, learned senior counsel for the
appellants has referred to the compliance affidavit of the
respondent pursuant to the order of this Court dated
21.09.2026 and submits that the endeavour of the respondent
to create an artificial distinction between detention and arrest
is impermissible. Neither the Constitution nor the statute
support such distinction. Adverting to paragraph 9 of the
compliance affidavit, he submits that when the accused persons
were intercepted at 02:00 pm on 29.09.2025, they were
effectively under the control of the respondent with their liberty
completely curtailed. The period of 24 hours, as per Article 22(2)
of the Constitution of India, would commence from the said
point of time i.e. 02:00 pm on 29.09.2025. Therefore, the act of
the respondent to formally arrest the accused persons at 11:00
am and 11:15 am of 30.09.2025 is only to circumvent the
aforesaid mandatory timeline of 24 hours. The accused persons
were produced before the Judicial Magistrate at 04:45 PM of
16

30.09.2025, who remanded them to judicial custody. He
submits that if the arrest of the accused persons is stated to
have taken place at 02:00 pm of 29.09.2025, their production
before the Judicial Magistrate at 04:45 pm on the next day is
clearly in breach of the 24 hours mandate, as prescribed under
Article 22(2) of the Constitution of India.
12.1. Further submission of the learned senior counsel for
the appellants is that when an accused is under the physical
hold of an officer with coercive powers, he would be deemed to
be in the custody of such an officer. There is no distinction
between detention and arrest. If the endeavour of the
respondent to create an artificial distinction between detention
and arrest is accepted, it would amount to a distortion of the
true meaning of the constitutional guarantee against detention
without the sanction of a judicial authority.
12.2. He submits that the complaint was lodged on
29.09.2025 on ‘reasonable belief’ that the accused persons
had committed an offence under the NDPS Act whereafter, the
NDPS case being case No.04/CL/NDPS/DPF/AGT/2025-26
17

was registered on the spot. The aforesaid case was registered
before 02:30 pm as the accused persons reached the Customs
Office around 02:30 pm after the registration of the NDPS
case.
12.3. He further submits that the recovered contraband was
tested with the testing kit being carried by the search team,
whereafter on ‘reasonable belief’ the related NDPS case was
registered pursuant to which the accused persons were detained.
12.4. Mr. Rouf Rahim has made elaborate submissions on
the basis of a convenience compilation. He has particularly
relied upon the following decisions:
2
(i) Niranjan Singh Vs. Prabhakar Rajaram Kharote ;
(ii) Ashak Hussain Allah Detha @ Siddique Vs. Assistant
3
Collector of Customs (P.), Bombay ;
(iii) T. Ramadevi Vs. State of Telangana, rep. by its Principal
4
Secretary ;

2
1980 2 SCC 559
3
1990 SCC OnLine Bom 3
4
2024 SCC OnLine TS 4288
18

(iv) Hanumant Jagganath Nazirkar Vs. State of
5
Maharashtra ; and
(v) Biswajit Mandal Vs. Inspector, Narcotics Control
6
.
Bureau

12.5. Learned senior counsel has also urged other
grounds, such as, non-compliance with the mandatory
provisions of Section 36 BNSS which is nothing but a statutory
expression of the procedural safeguards provided under the
Constitution, thus, violating Article 21 of the Constitution of
India. When there is violation of Article 21 of the Constitution
of India, Section 37 of the NDPS Act will have to give way. On
this ground also, appellants are liable to be enlarged on bail.
12.6. He therefore submits that the stand taken by the
respondent is completely unconstitutional and cannot be
accepted. The decision of the High Court rejecting the bail
prayer of the appellants cannot be sustained and should be set
aside.

5
2025 SCC OnLine Bom 2508
6
2025 SCC OnLine Ker 6017
19

13. Mr. Raghavendra P. Shankar, Additional Solicitor
General of India, appearing for the respondent, at the outset
submits that the contentions advanced on behalf of the
appellants are thoroughly misplaced and are liable to be
rejected.
13.1. He has extensively referred to the compliance
affidavit filed by the respondent pursuant to the order of this
Court dated 21.09.2026 to contend that there was no breach of
Article 22(2) of the Constitution of India after the formal arrest
of the appellants inasmuch as the appellants were produced
before the Judicial Magistrate within the time-frame of 24 hours
after arrest.
13.2. Learned Additional Solicitor General submits that
the appellants were intercepted at 02:00 pm on 29.09.2025
following confidential information that the truck in which they
were travelling, was carrying psychotropic substances.
Therefore, at 02:00 pm on 29.09.2025, the appellants were not
formally arrested.
20

13.3. The preliminary search of the contraband took place
at the interception place in front of the accused persons and in
presence of independent witnesses at 02:00 pm on 29.09.2025,
which led to recovery and seizure of 11.03 kg. (gross weight) of
methamphetamine (Yaba) tablets.
13.4. The second seizure took place upon the accused
persons being taken to and reaching the office premises of the
Customs Division, Agartala, which led to recovery of additional
quantity of 49.760 kg. (gross weight) of methamphetamine
(Yaba) tablets. The second seizure procedure was completed at
05:00 pm on 29.09.2025.
13.5. The detention of the accused persons took place only
upon their formal arrest at 11:00 am and 11:15 am, respectively,
on 30.09.2025. This was because the period preceding the
formal arrest was required to complete the statutory formalities
under the NDPS Act, such as, conducting the search and
seizure, weighing, interrogation to trace the supply chain,
besides administrative and travelling delays.
21

13.6. Even if the detention of the accused persons is
treated as having taken place at 05:00 pm of 29.09.2025
following conclusion of the second search and seizure
procedure, there would not be any violation of the 24 hours
period, as provided for under Article 22(2) of the Constitution
of India inasmuch as the accused persons were produced
before the Judicial Magistrate on 30.09.2025 at 04:30 pm,
who remanded them to judicial custody thereafter. He
therefore submits that reckoning the commencement of
detention either from 5:00 pm of 29.09.2025, or 11:00
am/11:15 am of 30.09.2025 does not violate the mandate of
24 hours, as prescribed under Article 22(2) of the Constitution
of India.
13.7. Explaining further, learned Additional Solicitor
General submits that the intervening period from interception
to formal arrest cannot be included within the time-frame of 24
hours, as the same was required to carry out and complete the
mandatory and time-consuming statutory formalities under the
NDPS Act.
22

13.8. He submits that Sections 42(1)(d) and 43(b) of the
NDPS Act provide for detention for the purpose of search. Such
temporary restraint and securing the presence of the accused
under Rule 3 of the Narcotic Drugs and Psychotropic
Substances (Seizure, Storage, Sampling and Disposal) Rules,
2022 to maintain the integrity of the seizure, do not trigger the
24-hours period under Article 22(2). A temporary restraint to
secure compliance with a statutory safeguard in the course of
investigation is not arrest or detention in custody.
13.9. Rule 3(4) of the aforesaid Rules requires the
classification, weighing and packaging of the seized drugs to be
done in the presence of ‘the person from whose possession the
drugs and substances were recovered’ and this has to be
mentioned in the panchnama. Therefore, the time taken to
comply with Rule 3 is outside the 24 hours period.
13.10. Even assuming but not admitting that the formal
arrest of the appellants were delayed, the 24 hours period
commences at the earliest from the conclusion of the search and
seizure at 05:00 pm on 29.09.2025. The accused were produced
23

before the Magistrate at 04:30 pm on 30.09.2025 which is
within 24 hours. Thus, even if, on a demurrer, the conclusion of
the process of search and seizure i.e. 05:00 pm on 29.09.2025
is taken as the starting point when the accused were considered
to be ‘arrested and detained in custody’, the accused were
produced before the Magistrate within 24 hours as required
under Article 22(2) of the Constitution of India.
13.11. In support of his submissions, Mr.
Raghavendra P. Shankar has placed heavy reliance on the
decision of a Single Bench of the Kerala High Court in the case
7
of Arun K. Thomas Vs. Narcotics Control Bureau and submits
that the reasoning of the Kerala High Court may be treated as
the submission of the respondent. Referring to Arun K. Thomas ,
he submits that the expression ‘arrest’ and ‘detention in
custody’ are not synonymous. Detention in custody is not
intrinsically linked to the act of arrest. Referring to the various
provisions of the NDPS Act, he submits that the statutory
design of the NDPS Act distinguishes between ‘detention’ and

7
2026 SCC Online Ker 13043
24

‘arrest'. The enquiry under Section 67 of the NDPS Act creates
a buffer-zone, wherein the individual is under the authority of
the enforcement agency for investigative purpose. During this
period, the constitutional safeguard of Article 22(2) remains in
abeyance until formal custodial arrest is effected.
13.12. Learned Additional Solicitor General has also
referred to the decision of the Madras High Court in the case of
8
Kannan Vs. State of Tamil Nadu , wherein also a similar view
has been taken. The time taken by the authorities to fulfil the
statutory mandate under the NDPS Act, prior to arrest, cannot
be included for calculation of 24 hours in custody under Section
58 of the BNSS.
13.13. Finally, learned Additional Solicitor General has
referred to a decision of the Orissa High Court in Aryaman
9
Pattnayak Vs. Union of India , wherein also the Orissa High
Court has opined that a person may be detained or his liberty
is temporarily disrupted in the course of search and seizure but
it cannot be treated as a detention alike arrest. He submits that

8
2026 SCC OnLine Mad 6652
9
MANU/OR/1830/2025
25

against this decision of the Orissa High Court, the petitioner
Aryaman Pattnayak had approached this Court in SLP (Crl.)
Diary No. 33904/2026; however, this Court vide the order dated
18.08.2026 declined to interfere.
13.14. Summing up his arguments, learned Additional
Solicitor General submits that while he acknowledges that
detention preceding arrest cannot be for an unduly long period,
in which event courts are bound to intervene, the distinction
between detention and arrest needs to be borne in mind,
particularly in the context of NDPS cases, to give a more
meaningful interpretation to clause (2) of Article 22 of the
Constitution of India. He, therefore, submits that there is no
merit in the criminal appeal, which should accordingly be
dismissed.
14. Submissions made by the learned counsel for the
parties have received the due consideration of the Court.
15. At the outset it would be appropriate to refer to the
relevant constitutional and statutory provisions.
26

16. Since the entire case revolves around interpretation
of clause (2) of Article 22 of the Constitution of India, the said
provision may be adverted to at the outset. Article 22 provides
for protection against arrest and detention in certain cases.
While clauses (4) to (7) of Article 22 of the Constitution of India
deal with preventive detention, clause (3) thereof clarifies that
clauses (1) and (2) of Article 22 shall not apply to any person
who, for the time being is an enemy alien or to any person who
is arrested or detained under any preventive detention law.
Thus, clauses (1) and (2) of Article 22 apply to cases of arrest
other than preventive detention. Clause (1) of Article 22 deals
with furnishing of grounds of arrest etc. to the arrestee, with
which we are presently not concerned. We are concerned with
clause (2) of Article 22, which reads as follows:
22. Protection against arrest and detention in certain
cases. – *
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to
the court of the magistrate and no such person shall be
27

detained in custody beyond the said period without the
authority of a magistrate.

16.1. What is discernible from the above is that there is a
positive mandate in clause (2) of Article 22. It says, every person
(without any exception) who is arrested and detained in custody
has to be produced before the nearest magistrate within a
period of 24 hours of such arrest without fail. However, the time
necessary for the journey from the place of arrest to the court
of the magistrate is required to be excluded while computing the
period of 24 hours. This provision ends with a clear declaration
that no such person shall be detained in custody beyond the
said period without the authority of a magistrate. Therefore, this
provision makes it abundantly clear that the 24-hours deadline
is sacrosanct. The only period which is permitted to be deducted
from the 24 hours mandate is the time necessary for the journey
from the place of arrest to the court of the magistrate. The
Constitution does not permit any other time period to be
excluded from the 24 hours period.
17. Section 57 CrPC contains the constitutional mandate
of Article 22(2). It says that no police officer shall detain in
28

custody a person without warrant for a longer period than,
under all the circumstances of the case, is reasonable and such
period shall not, in absence of a special order of a magistrate
under Section 167 CrPC, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the court
of the magistrate.
18. Section 57 CrPC is a little bit more elaborative. It not
only speaks of the 24 hours mandate but says that detention in
custody of a person without warrant shall not be for a longer
period than what is reasonable considering all the circumstances
of the case which in any case should not exceed 24 hours unless
there is a special order of a magistrate. So, the statutory limitation
is not only that of 24 hours; detention in custody should not be
for a longer period than what is reasonable in the circumstances
of the case. This aspect has to be borne in mind not only by the
police or detaining authority but by the magistrate as well and
has to be taken into account while considering remand.
Therefore, remand is never a mechanical exercise.
29

19. Since there is a reference in Section 57 CrPC to
Section 167 CrPC, we may also advert to the same. Section 167
CrPC lays down the procedure where investigation cannot be
completed within 24 hours. In such a case, the investigating
officer or the officer-in-charge of the police station is required to
transmit to the nearest Judicial Magistrate a copy of the entries
in the diary relating to the case and shall also forward the
accused to such magistrate. The magistrate may authorize
detention of the accused for a term not exceeding 15 days in the
whole. As per the proviso, the magistrate may authorize
detention of the accused person otherwise than in police
custody beyond the period of 15 days if he is satisfied that
adequate grounds exist for doing so. However, the total period
of such detention shall not exceed 90 days, where the
investigation relates to an offence punishable with death or
imprisonment for life, or imprisonment for a term not less than
10 years and 60 days where the investigation relates to any
other offence.
30

20. The mandate of Section 57 CrPC is carried forward in
Section 58 of BNSS.
21. Section 41 to Section 60A are included in Chapter V
CrPC, which deals with arrest of persons. Section 41 deals with
a situation when police may arrest without warrant, whereas
Section 41A provides for notice of appearance before a police
officer. As per sub-section (1) of Section 41A, the police officer
shall, in all cases where the arrest of a person is not required
under Section 41(1), issue a notice directing the person against
whom a reasonable complaint has been made or credible
information has been received, or reasonable suspicion exists
that he has committed a cognizable offence, to appear before
him or at such other place as may be specified in the notice.
Sub-section (2) says that it shall be the duty of that person to
comply with the terms of the notice. In the event there is
compliance, the noticee shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be
recorded, the police officer is of the opinion that he ought to be
arrested (sub-section (3)). However, in terms of sub-section (4),
31

if such a person fails to comply with the terms of the notice, the
police officer may arrest him for the offence mentioned in the
notice.
22. How arrest has to be made has been dealt with in
Section 46 CrPC.
23. Section 35 of BNSS has combined erstwhile Sections
41 and 41A of the CrPC. On the other hand, Section 43 of BNSS
contains the provisions of Section 46 CrPC.
24. Since this is a case arising out of the NDPS Act, it
would be useful to also refer to the relevant provisions of the
NDPS Act.
24.1. Section 41 of the NDPS Act deals with the power to
issue warrant and authorization. Sub-section (1) says that a
metropolitan magistrate or a magistrate of the first class or any
magistrate of the second-class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest
of any person whom he has reason to believe to have committed
any offence punishable under the NDPS Act, or for the search,
whether by day or by night, of any building, conveyance or place
32

in which he has reason to believe any narcotic drug or
psychotropic substance or controlled substance in respect of
which an offence punishable under the NDPS Act has been
committed. Sub-section (2) says that any such officer of gazetted
rank of the departments of central excise, narcotics, customs,
etc. of the Central Government including the paramilitary forces
if he has reason to believe from personal knowledge or
information given by any person and taken in writing that any
person has committed an offence punishable under the NDPS
Act, may authorize any officer subordinate to him but superior
in rank to a peon, sepoy or a constable to arrest such a person
or search a building, conveyance or place or himself arrest such
person or search a building, conveyance or place.
24.2. The power of entry, search, seizure and arrest
without warrant or authorization is provided in Section 42 of
the NDPS Act. As per sub-section (1), such a power is conferred
upon an officer who is superior in rank to a peon, sepoy or
constable, if he has reason to believe from his personal
knowledge or information given by any person and taken down
33

in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable
under the NDPS Act has been committed, may, between sunrise
and sunset enter into and search any such building and
conveyance or place etc. What is of relevance is clause(d) of sub-
section (1) of Section 42. It provides that such an officer may
detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under the NDPS Act.
24.3. The conditions under which search of persons shall
be conducted is dealt with in Section 50 of the NDPS Act. As per
sub-section (1), when any officer duly authorized under Section
42 is about to search any person in terms of Sections 41, 42 or
43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest gazetted officer of any
of the departments mentioned in Section 42 or to the nearest
magistrate. Sub-section (2) says that if such requisition is
made, the officer may detain the person until he can bring him
34

before the gazetted officer or the magistrate referred to in
sub-section (1).
24.4. Section 51 of the NDPS Act clarifies that provisions
of the CrPC shall apply to warrants, arrests, searches and
seizures.
24.5. That brings us to Section 67 of the NDPS Act, which
empowers an officer referred to in Section 42 of the NDPS Act to
call for information etc. It says that any officer referred to in
Section 42 and who is authorized in this behalf by the Central
Government or by a State Government may, during the course
of any enquiry in connection with the contravention of any
provisions of the NDPS Act, call for information from any person
for the purpose of satisfying himself whether there has been any
contravention of the provisions of the NDPS Act or any rule
made thereunder; require any person to produce or deliver any
document or thing useful or relevant to the enquiry; and
examine any person acquainted with the facts and
circumstances of the case.
35

25. In exercise of the powers conferred by Section 76 read
with Section 52A of the NDPS Act, the Central Government has
made a set of rules called the Narcotic Drugs and Psychotropic
Substances (Seizure, Storage, Sampling and Disposal) Rules,
2022 (briefly, ‘the Rules of 2022’ hereinafter). Chapter II of the
Rules of 2022 deals with seizure and search of the seized
material. Classification of seized material is provided for in Rule
3. Sub-rules (1), (2) and (3) lay down the manner and procedure
for classification of the seized material. Sub-rule (4) is relevant.
It says that classification, weighing, packaging and numbering,
as referred to in Rule 3, shall be done in the presence of the
search witnesses and the person from whose possession the
drugs and substances were recovered, and shall have to be
mentioned in the panchnama drawn on the spot of seizure.
26. In case after case the Supreme Court has declared
that the 24 hours period provided in Article 22(2) of the
Constitution of India is a constitutional mandate which has
to be followed mandatorily. Any infringement or breach of
clause (2) of Article 22 would render the arrest illegal and
36

unconstitutional. It is a constitutional safeguard intended to
act as a safety barrier to check executive excess.
10
27. In the case of Khatri vs State of Bihar , this Court
declared that the requirement of producing an arrested person
before a magistrate is a binding constitutional command. It
must be strictly and scrupulously observed. This decision came
in the backdrop of the horrific Bhagalpur blindings of prisoners.
In that context this Court noted that in a few cases the accused
persons do not appear to have been produced before the
Judicial Magistrates within 24 hours of their arrest as required
by Article 22 of the Constitution. The Bench strongly urged the
State and its police authorities to ensure that the constitutional
and legal requirement to produce an arrested person before a
Judicial Magistrate within 24 hours of the arrest must be
scrupulously observed. This Court observed that the provision
inhibiting detention without remand is a very healthy provision
which enables the magistrates to keep check over the police
investigation. In the facts of that case, this Court opined that

10
(1981) 1 SCC 627
37

either the blinded prisoners were not physically produced before
the Judicial Magistrates and the Judicial Magistrates
mechanically signed the orders of remand or they did not bother
to enquire even if they found that the prisoners before them had
received injuries in the eyes.
11
28. This Court in D.K. Basu Vs. State of West Bengal ,
declared that the 24 hours rule mandated under clause (2) of
Article 22 is intended to prevent unlawful detention and
custodial abuse. This Court acknowledged the prevalence of
custodial violence and abuse of police power in the country and
observed that notwithstanding constitutional and statutory
safeguards, growing incidents of torture and deaths in police
custody was a disturbing factor. This Court recorded that
experience shows that worst violations of human rights take
place during the course of investigation when the police with a
view to secure evidence or confession often resorts to third
degree methods including torture and adopts techniques of
screening arrest by either not recording the arrest or describing

11
(1997) 1 SCC 416
38

the deprivation of liberty merely as a prolonged interrogation. It
has been held thus:
24. Instances have come to our notice where the police has
arrested a person without warrant in connection with the
investigation of an offence, without recording the arrest, and
the arrested person has been subjected to torture to extract
information from him for the purpose of further investigation
or for recovery of case property or for extracting confession etc.
*

28.1. This compelled the Court to issue a slew of
guidelines, including permitting the presence of the counsel of
the arrestee at some point of time during the interrogation to
deter the police from using third degree methods during
interrogation.
29. Again, in the case of Directorate of Enforcement Vs.
12
, this Court has held that violation of clause
Subhash Sharma
(2) of Article 22 vitiates the arrest being in contravention of
Articles 21 and 22(2) of the Constitution of India. In such an
event, it becomes the duty of the court dealing with the bail
application to release the accused on bail.

12
2025 SCC Online SC 240
39

30. This provision was also examined in great detail by
this Bench, of course in a slightly different context, in the case
13
of Jaskaran Jeet Singh Deol Vs. State of Punjab . The issue
before this Court in Jaskaran Jeet Singh Deol was whether an
accused, who has suffered breach of both clauses (1) and (2) of
Article 22 of the Constitution of India, be re-arrested for the
same offence? If so, under what circumstances, in what manner
and the procedure that is required to be followed in such a case?
30.1. While answering the above, the Bench issued
detailed guidelines and observed that the constitutional
mandate of Article 22(2), beautifully explained in the celebrated
case of Khatri , continues to remain firm and unshaken, as if
engraved in stone.
31. In Niranjan Singh, this Court, speaking through
Justice V.R. Krishna Iyer, examined the question as to when is
a person in custody within the meaning of Section 439 CrPC?
Answering this question, this Court held that a person would
be in custody when he is in duress either because he is held by

13
2026 SCC OnLine SC 1939
40

the investigating agency or other police or allied authority or is
under the control of the court having been remanded by judicial
order, or having offered himself to the court's jurisdiction and
submitted to its orders by physical presence. In that context,
this Court declared that no lexical dexterity nor precedential
profusion is needed to come to the realistic conclusion that he
who is under the control of the court or is in the physical hold
of an officer with coercive power is in custody for the purpose of
Section 439 CrPC. This Court held that the word ‘custody’ is of
elastic semantics but its core meaning is that the law has taken
control of the person. Proceeding further, this Court held that
explanations and submissions to the effect that police have
taken a man into informal custody but not arrested him,
have detained him for interrogation but not taken him into
formal custody would amount to unfair evasions of the
straightforwardness of the law. The declaration is so
profound that it merits its extraction which we hereunder
do:
7. When is a person in custody, within the meaning of
Section 439 CrPC? When he is in duress either because
41

he is held by the investigating agency or other police or
allied authority or is under the control of the court having
been remanded by judicial order, or having offered
himself to the court's jurisdiction and submitted to its
orders by physical presence. No lexical dexterity nor
precedential profusion is needed to come to the realistic
conclusion that he who is under the control of the court
or is in the physical hold of an officer with coercive power
is in custody for the purpose of Section 439. This word is
of elastic semantics but its core meaning is that the law
has taken control of the person. The equivocatory
quibblings and hide-and-seek niceties sometimes heard
in court that the police have taken a man into informal
custody but not arrested him, have detained him for
interrogation but not taken him into formal custody and
other like terminological dubieties are unfair evasions of
the straightforwardness of the law. We need not dilate on
this shady facet here because we are satisfied that the
accused did physically submit before the Sessions Judge
and the jurisdiction to grant bail thus arose.
32. In Ashak Hussain Allah Detha @ Siddique , a Single
Bench of the Bombay High Court was considering the bail
prayer of the accused persons who were charged with
committing offences under the NDPS Act read with Section 135
of the Customs Act, 1962. In the facts of that case, it was
noticed that the accused persons were actually detained from
42

the midnight of 19.07.1989. The statements of all the accused
persons were recorded by the same officers between the
midnight of 19.07.1989 and the midnight of 20.07.1989. During
this period of 24 hours they were not allowed to leave the place
of their detention. They were also not produced before the
magistrate. They were produced before the magistrate only on
21.07.1989 at 05:20 pm. Their arrest was recorded in such a
manner that their production before the magistrate fell within
24 hours stipulated by Article 22(2) of the Constitution of India
and Section 57 of the CrPC. It was the stand of the prosecution
that after their arrest, the accused were not detained beyond 24
hours.
32.1. The High Court rejected this submission of the
prosecution as a distortion of the true meaning of the
constitutional guarantee against detention without the sanction
of the judicial tribunal. In that context, the High Court
examined the meaning of the word ‘arrest’ and noted that it has
neither been defined in the CrPC nor in any other law. After
referring to English decisions as quoted in Law Lexicons, the
43

High Court observed that the word ‘arrest’ is a term of art. It
starts with the arrester taking a person into his custody by
action or words restraining him from moving anywhere beyond
the arrester’s control and it continues until the person so
restrained is either released from custody or having been
brought before a magistrate is remanded in custody by the
magistrate. The High Court opined that in substance, arrest is
the restraint on a man’s personal liberty by the power or colour
of lawful authority. In its natural sense, ‘arrest’ means the
restraint on or deprivation of one’s personal liberty. Following
the same, the High Court held as follows:
10. It is thus clear that arrest being a restraint on the
personal liberty, it is complete when such restraint by an
authority, commences. Whether a person is arrested or
not does not depend on the legality of the act. It is enough
if an authority clothed with the power to arrest, actually
imposes the restraint by physical act or words. Whether
a person is arrested depends on whether he has been
deprived of his personal liberty to go where he pleases. It
stands to reason, therefore, that what label the
Investigating Officer affixes to his act of restraint is
irrelevant. For the same reason, the record of the time of
arrest is not an index to the actual time of arrest. The
44

arrest commences with the restraint placed on the liberty
of the accused and not with the time of ‘arrest’ recorded
by the Arresting Officers.

32.2. The High Court rejected the arguments advanced on
behalf of the prosecution that the accused were not arrested at
the midnight of 19.07.1989 but were detained for interrogation
as being untenable. It has been explained that since the
offences under the NDPS Act are cognizable, the investigating
officer possesses the authority to arrest without warrant.
‘Detention in custody for interrogation’ is unknown to law. It
has been explained in the following manner:
11. The argument that the applicants were not arrested
at the mid night of 19th July 1989 but were detained for
interrogation is untenable. Since the offences under
the NDPS Act are cognizable, the Investigating Officers
possess the authority to arrest without warrant.
They arrest a suspect or do not arrest at all. The
‘detention in custody for interrogation’ is unknown to
law. Interrogation is known. A person may be lawfully
interrogated. But during such interrogation he is a
freeman. If he is detained, not allowed to leave the office
of the Respondent No. 1 and compelled to eat and sleep
there, he is under detention. This restraint is in reality
45

an arrest. In this case, the applicants were not allowed to
leave the office of the Respondent No. 1 after the midnight
of 19th July 1989. In the circumstances of this case, the
applicants were arrested at the midnight of 19th July
1989.

32.3. The High Court explained further that an
investigating officer may lawfully detain a suspect for an
offence. Detention in custody for interrogation is not authorized
by law. The investigating officer may detain for an offence only.
Any restraint on a person’s liberty except for an offence is illegal.
There is no authority in the investigating officer to detain a
person for the purpose of interrogation or helping them in the
enquiry.
32.4. The High Court referred to several such instances of
illegal detention and remarked that the tendency to detain
suspects for questioning and manipulating the record to show a
later time of arrest is a reprehensible practice of recent origin
followed by the officers of the Customs Department and the
Narcotics Control Bureau (NCB). What the investigating officers
do, in such cases, is to procure statements by assault, illegal
46

detention and fear of continued detention. Then, they present
these documents as ‘statements’. That is not what the law
permits them to do. This manipulation and abuse of the
legislative sanction for the use of statements of the accused
requires to be censured in the strongest terms.
33. A Division Bench of the High Court of Telangana in T.
Ramadevi was hearing a habeas corpus petition where two
questions of law were involved. We are concerned with the first
question which is as under:
Whether the period of apprehension by the police
authorities before the official arrest being showin is also
to be considered for the purpose of fulfilling the
requirement of producing the so-called apprehended
person before the Judicial Magistrate within 24 hours?

33.1. After referring to Sections 57 and 167(1) of CrPC, the
High Court examined the decision of the Bombay High Court in
Ashak Hussain Allah Detha @ Siddique and other similar
judgments observed that Section 57 CrPC refers to the
expression ‘detention’; it does not use the expression ‘from the
time of arrest’. Therefore, the period of detention starts the
moment an accused is apprehended by the police, as from that
47

moment itself, there is a restraint so far as personal liberty of
the concerned person is concerned as he remains under the
confines of police personnel. Thus, it would amount to a
detention of a person right from the time he is apprehended by
the police personnel. Therefore, the arrest of a person
commences from the time restraint is placed on his liberty and
not from the time of the arrest officially recorded by the
arresting officer.
33.2. The High Court declared that the period of
apprehension is also to be taken into consideration for the
purpose of calculating the 24 hours period as envisaged under
Section 57 CrPC. This is further clarified by the High Court by
declaring that 24 hours is not to be calculated from the time of
the official arrest being shown by the police personnel in the
arrest memo but from the time he was initially apprehended or
taken into custody.
34. A Division Bench of the Bombay High Court in
Hanumant Jagganath Nazirkar endorsed the view taken in
Ashak Hussain Allah Detha @ Siddique . After noting that the
48

term ‘arrest’ is not a defined expression, the Division Bench
examined as to how the word ‘arrest’ is derived from the French
word ‘arreter’ and held that arrest commences with the restraint
placed on the liberty of the person and not from the time of
‘arrest’ recorded by the arresting officer. It commences when
one is taken into custody and restrained from liberty. The
Division Bench held thus:
18. The word ‘arrest’ is derived from the French word
‘arreter’ which means ‘to stop or stay’. It signifies a
restraint of a person. Therefore, ‘arrest’ would mean a
restraint of a man's person, obliging him to be obedient
to law thereby amounting to the execution of the
command of a duly authorised officer. The word ‘arrest’
would mean a restraint or the deprivation of one's
personal liberty.
19. The question of whether a person is under arrest or
not must be decided based on whether they have been
deprived of their personal liberty to go where they please.
In the legal sense, an ‘arrest’ would consist of taking into
custody of another person under authority empowered by
law, for the purpose of holding or detaining him to answer
a criminal charge or of preventing the commission of a
criminal offence. It starts with the arrester taking a
person into his custody by action or words, ‘restraining
him’ from moving anywhere beyond the arrester's control,
49

and it continues until the person so restrained is either
released from custody or brought before a Magistrate.
The ‘arrest’ is complete when such restraint by an
authority commences. The arrest commences with the
restraint placed on the liberty of the person and not with
the time of ‘arrest’ recorded by the Arresting Officer.
20. ‘Arrest’ consists in the actual touching of a person's
body with a view to his restraint. The words may,
however, amount to an ‘arrest’ if they are calculated to
bring to a person's notice that he is under compulsion
and he, thereafter, submits to such compulsion. An
authority is said to arrest another person if it prevents
the latter from freely making their movements and
moving according to their will. To constitute an arrest, it
is necessary that the officers should assume custody and
control over the person, either by force or with his
consent. ‘Arrest’ is when one is taken and restrained from
their liberty. Even if a person is touched with a view to
detaining, it would amount to an arrest.

34.1. On behalf of the prosecution, it was contended that
the time taken for the pre-arrest medical examination should be
excluded in computing the 24 hours period. High Court rejected
the said contention and held that under Article 22(2) of the
Constitution of India, only the time taken for the journey from
the place of arrest to the court of the magistrate is excluded.
50

There is no provision in the Constitution or in the CrPC that
requires to exclude the pre-arrest medical examination time
from the 24 hours mandate.
35. Let us now deal with the decision of the Kerala High
Court in Biswajit Mandal. The learned Judge posed the question
as to when does the 24 hours 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?
35.1. The above question came up for consideration in the
context of a bail application filed by the accused who was
charged with committing offences under the NDPS Act. The
Court noted that the technique of not recording the arrest under
one pretext or the other is often resorted to under the guise of
investigation and observed that brutalities of police generally
occur during these periods of uncontrolled authority. Unless
there is a check, such unrecorded periods of custody can be the
source of human rights violations.
51

35.2. Adverting to Article 22(2) of the Constitution, the
High Court observed that the expression ‘arrested and detained’
appearing therein is often misused by the police authorities to
assert that the time starts only from the actual time of arrest.
After referring to various decisions, the High Court declared that
the period of 24 hours to produce an accused before the
magistrate commences not when the actual time of arrest is
recorded by the police but runs from the time when the accused
was effectively detained or his liberty was curtailed. The failure,
refusal or omission to record an arrest or continuation of an
interrogation for prolonged periods without recording arrest,
shall not preclude those periods of curtailed liberty as
constituting arrest.
36. Let us now turn to the contra-decisions cited at the
Bar by the learned Additional Solicitor General.
37. Orissa High Court was considering an order passed
by the learned District and Sessions Judge-cum-Special Judge,
Bhubaneswar in an NDPS case granting further extension of
custody of the accused in Aryaman Pattnayak , notwithstanding
52

the contention of the accused that he was not produced before
the magistrate within 24 hours of arrest. As per the facts of the
case, a team of officials from the NCB reached the flat in
question at 01:15 pm and remained there till 04:50 pm. In
between, search and seizure operation was carried out. Accused
was stated to have been picked up by the NCB officials at 04:50
pm from the flat after the search and seizure operation was over.
He was formally arrested at 11:30 pm. It was contended on
behalf of the accused that his confinement started from 01:15
pm and the 24 hours period would start from the said time. He
was produced before the magistrate the next day between 05:00
pm to 05:30 pm, which was beyond the 24 hours mandate.
37.1. After referring to Section 42 of the NDPS Act as well
as Sections 46 and 57 of the CrPC and relying upon the decision
14
of this Court in Directorate of Enforcement Vs. Deepak Mahajan ,
a learned Single Judge of the Orissa High Court posed the
question as to from when the 24 hours time is to be computed?
Referring to the facts of that case, Orissa High Court was of the

14
(1994) 3 SCC 440
53

view that only after the search and seizure operation was
carried out with compliance to the procedural formalities and
only upon a confirmation that there is a case made out revealing
prima facie involvement of a person in the commission of a crime
and as a result he is detained, it may be said that from the time
of such detention, the 24 hours timeline commenced. The High
Court reasoned that further inquiry and interrogation of an
accused may be necessary to confirm his complicity or to
confirm his nexus with the crime committed. For that, a formal
arrest is recorded at the end. Based on such reasoning, the High
Court took the view that a person may be detained or his liberty
is temporarily disrupted in the course of search and seizure but
such detention cannot be treated as an arrest. A detention is
always temporary but a formal arrest is recorded only upon a
satisfaction reached on the culpability of the accused. The High
Court distinguished detention from arrest by taking the view
that a detentions is based on reasonable suspicion whereas
arrest requires a reasonable belief of one’s involvement in a
crime. In a sense, detention is temporary restraint whereas
arrest is when one is found to be involved in the
prima facie
54

commission of an offence. While detention is investigatory,
arrest is accusatory and prosecutorial. Responding to the
possibility of prolonged detention, the High Court opined that
such extended detention may become an arrest; anyone
detained beyond a short investigated period may result in an
arrest. The opinion of the Orissa High Court is summed up in
paragraph No. 11 of the judgment which is extracted here
under:
11. In the case of the petitioner, as per the facts narrated
hereinbefore the NCB officials reached at his residence at
1.15 P.M. and to claim that on and from then, he was
arrested for being detained is an argument entirely
misconceived. A search and seizure is held with other
procedural compliances carried out and only upon a
confirmation that there is a case made out revealing prima
facie involvement of a person in the commission of a crime
and as a result, he is detained, it may be said that from
the time of such detention that 24 hours timeline
commenced even if there is a formal arrest shown
sometime later. It may also happen that further inquiry
and interrogation of an accused to be necessary to confirm
his complicity or with some nexus with the crime
committed and for that, a formal arrest is recorded at the
end. A person may be detained or his liberty is temporarily
55

disrupted in course of search and seizure but it cannot be
treated a detention alike arrest. At the time of any such
search, the presence of the suspect is very much
necessary and obviously, he cannot be allowed to leave
the place of search but to claim that such detention is a
confinement and is an arrest in the eye of law is an
incorrect argument. If, in each and every case, mere
detention for the purpose of inquiry, investigation and
during the time of search and seizure is to be treated as
an arrest, it would mean that even before anyone's
involvement is prima facie proved, he is shown as
arrested. A formal arrest is, therefore, recorded only upon
a satisfaction reached at and not otherwise. A detention
is always temporary and it may lead to arrest, or no arrest
and a person is arrested only when incriminating
materials reveal his involvement. According to the Court,
a detention becomes an arrest when one is deprived of the
freedom to leave holding one to answer for a crime, not
just for brief questioning, especially, if it goes beyond a
short investigatory hold and involves a formal custody. A
detention is based on reasonable suspicion less than a
probable cause, whereas, arrest requires a reasonable
belief of one's involvement in a crime. In case, one is taken
to police custody and not released, any such extended
detention may become an arrest. Anyone detained beyond
a short investigative period may result in an arrest. In a
sense, the detention is a temporary restraint, whereas,
arrest is when one is found to be prima facie involved in
56

the commission of an offence. There is a fundamental
distinction between detention and arrest as the former is
investigatory and the latter is accusatory and
prosecutorial. If someone is detained is not necessarily
even a suspect but in case arrested, he is being treated as
an accused and there is a serious consequence to the
same as arrest affects liberty, dignity and potentially his
future prospects. A detention while still a restraint does
not carry the same legal and social implications unless it
escalates to an arrest. An arrest refers to an act of formally
taking a person into custody based on a reasonable belief
or evidence that he has committed a crime. It is not just
a restraint on liberty but a beginning of a formal crime
proceeding. A detention is, in normal parlance understood,
as an act of keeping a person in official custody temporarily
for the purposes of questioning or investigation. Importantly,
detention does not always imply suspicion of a crime, it is
generally used as a preventive or precautionary tool by the
authorities to maintain public order or investigate a matter
before taking further steps. The enforcement of law can
result in either a detention or an arrest and as earlier
discussed, detention is a temporary decision based on
reasonable suspicion which means one might be believed
being involved in illegal activities without enough evidence
for the charges and during such detention, one is not free
to leave though not formally arrested.

57

37.2. While we will deal with the aforesaid analysis of the
Orissa High Court in detail at a slightly later stage, for the
moment all that we can say is that the endeavor of the High
Court to create an artificial distinction between detention and
arrest is totally unwarranted and highly problematic. If we
venture into such semantics, question will naturally arise as to
who will determine as to what is a short instigative period or
when a detention extends beyond a short investigative period?
38. Be that as it may, this decision of the Orissa High
Court was assailed by the accused Aryaman Pattnayak before
this Court in Special Leave Petition (Criminal) Diary No. 33904
of 2026. By order dated 18.08.2026, this Court declined to
entertain the special leave petition and accordingly dismissed
the same.
39. The next case is that of the Madras High Court. In
Kannan , the accused was also arrested under the NDPS Act.
The order of remand of the accused was challenged before the
Madras High Court on various grounds including on the ground
that he was produced before the magistrate after 24 hours. The
58

primary contention made on behalf of the accused was that he
was detained by the police on 09.10.2024 at 05:00 pm from
which time the 24 hours period should be reckoned but he was
produced before the magistrate only at 05:30 pm on 10.10.2024,
showing his arrest at 06:30 pm on 09.10.2024.
39.1. After referring to the provisions contained in Sections
42, 43 and 50 of the NDPS Act, a learned Single Judge of the
Madras High Court held that the procedure contemplated
thereunder are imperative in nature and non-compliance of the
same would render any conviction recorded unsustainable.
While Section 42(1)(d) empowers the law enforcing agency to
detain and search and if it thinks proper, arrest any person
whom it has reason to believe to have committed an offence
under the NDPS Act, Section 50 lays down an elaborate
procedure for conducting personal search. The High Court took
the view that the procedures contemplated under the aforesaid
provisions have to be strictly complied with by the authorities.
Without complying with such procedure, any arrest made would
not be of any help to the prosecution. In this regard, the Madras
59

High Court tried to distinguish between arrest and detention. In
the facts of that case, it has been held that the time taken by
the authorities under the NDPS Act to fulfil the statutory
mandate prior to arrest, cannot be included for calculation of
the 24 hours period. The Madras High Court held as follows:
33. The word arrest has not been defined either in BNSS or in
any other statute. Section 43(1) of BNSS only explains how an
arrest can be made. Though detention and arrest involve
placing restriction on the movement of any person, they are
conceptually distinct. While detention is investigatory in
nature based on reasonable suspicion, arrest is accusatory in
nature after confirmation of commission of offence. Since the
provisions under NDPS Act are imperative in nature, the
officers of Law Enforcing Agency are expected to strictly follow
the same before effecting search, seizure or recovery. Otherwise
that may result in vitiating the conviction and sentence.
Therefore, the said procedure as contemplated under Sections
42, 43 and 50 have to be strictly complied with by the
authorities concerned. Without complying the same, any arrest
made by them, would not be of any help to the prosecution and
the same is likely to result in acquittal.
34. These precautionary procedures have been mandated
under the Act only to safeguard the accused persons from any
false cases being foisted as against them. Therefore, the time
taken by the authorities concerned, to fulfil the statutory
60

mandate, prior to arrest, cannot be included for calculation of
24 hours custody as contemplated under Section 58 of BNSS.
When the other statutes do not provide for a distinction
between the detention and the arrest, the judgment cited by
the learned counsel for the petitioner would not be applicable
for detention and arrest under NDPS Act cases.

40. Pausing here for a moment, learned Single Judge of
the Madras High Court has also sought to distinguish between
detention and arrest which, according to us, is wholly
unwarranted. Learned Judge has held that the procedures
contemplated under Sections 42, 43 and 50 of the NDPS Act
have to be mandatorily complied with failing which the
prosecution case may not stand scrutiny in court and may
result in acquittal. Question is, do these procedures in any
manner inhibit the arresting authority from producing the
detainee before the magistrate within 24 hours of such
detention and subject to further remand by the magistrate can
continue with the procedural compliance? The answer to the
above question, in our opinion, has to be an emphatic no.
41. In Arun K. Thomas, a learned Single Judge of the
Kerala High Court was examining bail applications of persons
61

accused of committing offences under the NDPS Act as well as
other provisions of the Indian Penal Code, 1860 (IPC). Primary
contention of the accused persons was that there was infraction
of Article 22(2) of the Constitution of India and Section 58 of the
BNSS (Section 57 of CrPC) in as much as they were subjected
to detention well before the formal recording of their arrest;
consequently they were produced before the magistrate beyond
24 hours from the time of such detention though within 24
hours of the recorded time of arrest. Reliance was placed on
Biswajit Mandal which was also a decision of a coordinate
Bench of the High Court i.e. Single Bench decision.
41.1. After reiterating the constitutional mandate of Article
22(2), the High Court posed the question as at what point does
the 24 hours period for producing an accused before the
magistrate begin to run?
41.2. After referring to the relevant facts as well as to the
constitutional and statutory framework, learned Judge
distinguished between arrest and detention in the following
manner:
62

15. Article 22(2) of the Constitution, read with Sections 58 and
187 of BNSS (57 and 167 of CrPC), employs the expressions
‘arrest’ and ‘detain in custody’. For Article 22(2) to be invoked,
two conditions must co-exist : (i) the person must have been
arrested, and (ii) he must have been detained in custody. The
constitutional text deliberately uses the conjunction ‘and’ in
Article 22(2), in contrast to Article 22(3), which employs the
disjunctive ‘or’. This deliberate choice signifies that Article
22(2) contemplates detention only when preceded by arrest,
and that such detention must conform to the statutory
framework under Sections 58 and 187 of BNSS (57 and 167 of
CrPC).
16. Arrest is the formal act of taking a person into police
custody, though custody may arise in other ways as well. The
expressions ‘arrest’ and ‘detention in custody’ are not
synonymous. Ordinarily, arrest is a prerequisite for detention
in connection with an offence, for detention under the criminal
process is not an independent action but must be preceded by
arrest. Yet, detention in custody is not intrinsically linked to
the act of arrest. In every arrest, there is custody, but custody
does not invariably amount to arrest. Custody may, in certain
circumstances, ripen into arrest, but not in all cases. The law
recognises situations where a person may be detained without
the procedural formality of arrest. Thus, detention in custody
can occur independently of arrest, expressly authorising law
enforcement to hold a person without first completing the
formal act of arrest.
63

41.3. After acknowledging that detention after arrest
satisfies the requirements of Article 21 i.e. procedure
established by law, the learned Judge however observed that
there are various statutes which recognize exceptional
circumstances where detention may be authorized without a
formal arrest. Thereafter, the High Court referred to various
provisions of the BNSS and the procedural requirements of
Section 67 of the NDPS Act. According to the learned Judge, the
statutory design distinguishes between ‘detention’ and ‘arrest’.
When a person is examined under sub-section(c) of Section 67,
he is under a legal obligation to cooperate with the inquiry.
While his liberty may be incidentally regulated during such
examination, he does not ipso facto become an accused under
arrest. According to the learned Judge, the enquiry under
Section 67 of the NDPS Act creates a buffer zone wherein the
individual is under the authority of the enforcement agency for
investigating purposes but the constitutional safeguard of
Article 22(2) and Section 58 of BNSS (57 CrPC) i.e. the 24 hours
countdown, remains in abeyance until a formal custodian
64

arrest is effected. The aforesaid views have been expressed in
the following manner:
19. *
The statutory design thus distinguishes between ‘detention’
and ‘arrest’. When a person is examined under sub-section (c),
he is under a legal obligation to cooperate with the enquiry.
While his liberty may be incidentally regulated during such
examination, he does not ipso facto become an ‘accused’ under
arrest. The enquiry creates a buffer-zone wherein the
individual is under the authority of the enforcement agency for
investigative purposes, but the constitutional safeguard of
Article 22(2) and Section 58 of BNSS (57 CrPC)-the twenty-four
hour countdown-remains in abeyance until a formal custodial
arrest is effected. Hence, Section 67 of the NDPS Act operates
as a statutory bridge between mere suspicion and formal
accusation. The element of arrest ripens only upon the
completion of enquiry and the discovery of incriminating
material. Until then, the officer's authority is confined to fact-
gathering, and the deprivation of liberty through arrest must
await the crystallisation of reasonable belief founded upon
such enquiry.

41.4. The learned Judge elaborates further and opines that
Sections 42 and 43 of the NDPS Act preserve a doctrinal
distinction between investigative detention and custodial arrest.
Under the scheme of the NDPS Act, ‘detain and search’ is only
65

a temporary restraint and does not involve infraction of personal
liberty. Relevant portion of the aforesaid reasoning is extracted
hereunder:
20. *
Thus, both Sections 42 and 43 preserve a doctrinal distinction
between investigative detention and custodial arrest. It is
significant to note that ‘detention for the purpose of search’ is
distinct and different from the ‘arrest and detention in
custody’ that forms the underpinning of Art. 22(2) of the
Constitution. Under the scheme of the NDPS Act, ‘detain and
search’ is only temporary restraint and does not involve
infraction of personal liberty.

41.5. Placing reliance on the decision of this Court in
15
Najmunisha Vs. State of Gujarat , it has been held that
statutory provisions conferring authorities with the power of
search and seizure are a mere temporary interference with the
right of the accused as they stand when regulated by reasonable
restrictions emanating from the statutory provisions; such a
power cannot be considered as a violation of any fundamental
right of the person concerned.

15
2024 SCC OnLine SC 520
66

41.6. Learned Judge explained that detention for the
purpose of search following the statutory procedure does not
amount to detention in custody following an arrest or ‘effective
detention’.
41.7. Thereafter, the learned Judge declared that as a
general proposition, arrest and consequently the 24 hours rule
for the purpose of Article 22(2) commences only from the
completion of the search and seizure that may lead to the arrest
and detention of the person in custody. The constitutional
reckoning of time begins only from the arrest and not from the
antecedent detention during search or enquiry. Relevant
portion of the aforesaid declaration is extracted hereunder:
20(c). Whether the search and seizure procedure has been
deliberately or unduly delayed and whether such delay would
have consequences is another matter. However, as a general
proposition, the arrest and consequently the twenty-four hour
rule for the purpose of Art. 22(2) commences only from the
completion of the ‘search and seizure’ that may lead to the
arrest and detention in custody of the person. This is so
because there is no element of detention in custody in the
context of Art. 22(2) amid a search and seizure and it is only
when the arrest and detention in custody occurs that the
67

twenty-four hour rule gets attracted. The constitutional
reckoning of time begins only from arrest, not from antecedent
detention during search or enquiry.
41.8. Learned Judge also referred to Rule 3(4) of the Rules
of 2022 highlighting that the process as contemplated
thereunder has to be carried out in the presence of the search
witnesses and the person from whose possession the
contraband was recovered; therefore, the period taken for
compliance with Rule 3 being incidental to the seizure and
essential for evidentiary integrity stands outside the ambit of
the 24 hours mandate under Article 22 of the Constitution.
Relevant findings of the learned Judge reads thus:
21(a) *
Accordingly, the period taken for compliance with Rule 3—
being incidental to seizure and essential for evidentiary
integrity— stands outside the ambit of the twenty-four hour
mandate under Article 22 of the Constitution. The
constitutional reckoning of time commences only upon formal
arrest, not during antecedent detention necessitated by
statutory procedures of seizure and inventory.

41.9. Referring to the decision of the coordinate Bench of
the same High Court in Biswajit Mandal, the learned Judge held
68

that the 24 hours period cannot be said to invariably begin from
the moment a person is detained in all cases. A clear procedural
framework exists for enquiry or limited restraint of liberty. In
such cases, the reckoning of the 24 hours period begins only
upon formal arrest.
42. First and foremost, Biswajit Mandal was decided by
a co-ordinate Bench i.e. by a Single Judge of the same High
Court. It is evident that learned Single Judge in Arun K. Thomas
has taken a contra-position to the views expressed in Biswajit
Mandal. Being a co-ordinate Bench, learned Single Judge
should have avoided such a course of action. Instead, the
matter should have been referred to the Chief Justice for placing
the matter before a Bench having a higher strength.
43. That apart, as we have indicated in the cases of
Aryaman Pattnayak and Kannan, here also the focus and thrust
of the learned Judge in trying to distinguish between detention
and arrest is not only misplaced but unwarranted as well. As
already noted supra, compliance with the procedural formalities
of the NDPS Act and the Rules of 2022 does not in any manner
69

prevent the arresting authority from producing the detainee
before the magistrate within the constitutionally prescribed
time limit of 24 hours. The only exception the Constitution itself
provides is the time necessary for the journey from the place of
arrest to the court of the magistrate. Article 22(2) does not
sanction exclusion of the time taken for enquiry and
investigation before the arresting authority could effect arrest of
the detainee. This is beyond the mandate of Article 22(2) of the
Constitution. Article 22(2) does not sanction creation of any
buffer zone where the liberty of an individual is curtailed for
investigating purposes but not formally shown as arrested.
Creation or contemplation of such buffer zone is
unconstitutional. There cannot be any suspension or keeping
in abeyance of the constitutional safeguards provided under
clause (2) of Article 22 save and except what is provided
thereunder. Therefore, the declaration that the period of 24
hours for the purposes of Article 22(2) commences from the
completion of such search and seizure and only from the time
of arrest recorded by the arresting authority is not only
unsustainable in law but is entirely unconstitutional. At the
70

cost of repetition, we assert that whether it is Section 67 of the
NDPS Act or Rule 3 of the Rules of 2022, there is no statutory
injunction preventing the detaining authority from producing
the detainee before the magistrate within 24 hours of such
detention. Therefore, the view taken by the learned Judge that
the 24 hours period commences upon only formal arrest and
not during antecedent detention necessitated by statutory
procedure of seizure and inventory is contrary to the
constitutional mandate of clause (2) of Article 22 read with
Section 58 BNSS (Section 57 CrPC) and does not lay down the
correct law on this point.
44. At this stage, it would be apposite to refer to the
decisions of this Court relied upon in Aryaman Pattnayak,
Kannan and in Arun K. Thomas as well as by the High Court in
the impugned decision.
45. This Court in Deepak Mahajan was considering the
question as to whether a magistrate before whom a person
arrested under sub-section (1) of Section 35 of the Foreign
Exchange Regulation Act, 1973 is produced under sub-section
71

(2) of Section 35 of the aforesaid Act, has jurisdiction to
authorize detention of that person under Section 167 (2) CrPC?
45.1. In the course of its analysis, the Bench also delved
into the meaning of the word ‘arrest’ and noted that it is derived
from the French word ‘arreter’ meaning ‘to stop or stay’; it, thus,
signifies a restraint of the person. The Bench also quoted with
approval a decision of the Madras High Court which was
authored by Justice Pandian, who incidentally also happened
to author the judgment in Deepak Mahajan . Relevant portion of
the judgment is extracted hereunder:
46. *
The word ‘arrest’ when used in its ordinary and
natural sense, means the apprehension or restraint or
the deprivation of one's personal liberty. The question
whether the person is under arrest or not, depends not
on the legality of the arrest, but on whether he has
been deprived of his personal liberty to go where he
pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in
the taking into custody of another person under
authority empowered by law, for the purpose of
holding or detaining him to answer a criminal charge
or of preventing the commission of a criminal offence.
72

The essential elements to constitute an arrest in the
above sense are that there must be an intent to arrest
under the authority, accompanied by a seizure or
detention of the person in the manner known to law,
which is so understood by the person arrested.
45.2. Thus, arrest would mean the restraint or the
deprivation of one’s personal liberty. The question whether a
person is under arrest or not would depend on whether he has
been deprived of his personal liberty to go where he pleases. In
the context of a criminal offence, an arrest consists in the taking
into custody of another person under authority empowered by
law for the purpose of holding or detaining him to answer a
criminal charge or of preventing the commission of a criminal
offence.
45.3. After delving into the interpretation of Section 167
CrPC, the Bench held that sub-sections (1) and (2) of Section
167 CrPC are squarely applicable with regard to the production
and detention of a person arrested under the provisions of
Section 35 of the Foreign Exchange Regulation Act, 1973 and
that the magistrate has the jurisdiction under Section 167(2) to
authorize detention of a person arrested by any authorized
73

officer under the aforesaid Act and taken to the magistrate in
compliance of Section 35(2) thereof.
46. Therefore, this Court in Deepak Mahajan has held
that a person would be deemed to be arrested if he is taken into
custody and detained to answer a criminal charge or to prevent
him from committing a criminal offence. In other words, a
person would be deemed to be under arrest if he has been
deprived of his personal liberty to go where he pleases. This
decision thus supports the proposition which is being advanced
on behalf of the appellants.
47. Najmunisha is a two-Judge Bench decision of this
Court wherein the conviction of the appellant under Section 29
read with Sections 20 (b) (ii) (c) and 25 of the NDPS Act was
assailed. The Bench was examining primarily the evidentiary
value of a confessional statement recorded under Section 67 of
the NDPS Act on which the conviction was based. In the course
of its analysis, the Bench also examined the provisions of
Section 41, more particularly sub-section (2) thereof, of the
NDPS Act. The Bench opined that the power of search and
74

seizure is conferred by the State upon its executive or
administrative arms for the protection of social security. In that
context it has been observed that statutory provisions
conferring authorities with the power to search and seize are a
near temporary interference with the right of the accused as
they stand well regulated by reasonable restrictions emanating
from the statutory provisions itself. Such a power cannot be
considered as a violation of any fundamental right of the person
concerned.
47.1. The aforesaid observations of the Bench was in the
context of its examination of the evidentiary value of a
confessional statement recorded under Section 67 of the NDPS
Act. Nothing more should be read into those observations. In
any case, the Bench was not considering the provisions of
Article 22(2) of the Constiution of India, more specifically, as to
when the twenty-four hours mandate would commence.
47.2. In ultimate analysis, this Court in Najmunisha held
that a statement recorded under Section 67 of the NDPS Act
would be inadmissible in evidence and cannot be considered to
75

convict an accused person under the NDPS Act. Consequently,
the appellants in Najmunisha were acquitted of the charges
framed against them by giving them the benefit of doubt.
48. We also find that the High Court in its impugned
judgment has placed reliance on the decision of this Court in
Sukhwinder Singh @ Gora. By way of the aforesaid decision this
Court had set aside the bail granted by the Punjab and Haryana
High Court to the accused for an offence punishable under
Sections 21(c) and 29 of the NDPS Act. While doing so, this
Court found that the High Court did not record any satisfaction
that the twin conditions under Section 37 of the NDPS Act were
satisfied and held that without recording such satisfaction, bail
could not have been granted.
48.1. In the course of the deliberation, this Court observed
that the right to speedy trial rooted in Article 21 of the
Constitution is undoubtedly a precious constitutional right.
However, the Bench proceeded to further observe that in
matters governed by special enactments such as the NDPS Act,
particularly where the recovery is of commercial quantity, the
76

said right under Article 21 must be exercised within the
framework of Section 37 and cannot be pressed into service
solely on the ground of delay to override Section 37. The
constitutional right under Article 21 and the special provisions
of law under Section 37 of the NDPS Act are to be read
harmoniously and not placed in opposition to each other.
49. We have our reservation on the aforesaid observations
made by the Bench. First and foremost, the rights conferred by
Article 21 of the Constitution of India are not only constitutional
rights. These are fundamental rights. Right to life and liberty as
enshrined in Article 21 are at the core of our constitutional
jurisprudence. These fundamental rights cannot be tinkered with
so lightly, not even under the special statutes. Such observations
run counter to numerous judgments of this Court which reiterate
the proposition that when there is a violation of Article 21 of the
Constitution, the rigor of Section 37 of the NDPS Act or similar
such provisions under the special statutes would have to give
16
way. [Please see Union of India Vs. K.A. Najeeb , Satender Kumar

16
(2021) 3 SCC 713
77

17 18
Antil Vs. CBI , Mohd. Muslim Vs. State (NCT of Delhi) , Ankur
19
Chadha Vs. State of Madya Pradesh , Vijay Singh Vs. Union of
20
India wherein this Court clearly held that Article 21 of the
Constitution of India over-rides Section 37 of the NDPS Act, Syed
21
Iftikhar Andrabi Vs. National Investigation Agency and Jaskaran
22
Jeet Singh Deol Vs. State of Punjab ]. In fact, it could be urged
that such an observation by the two-Judge Bench in Sukhwinder
Singh @ Gola may be hit by the principle of per incuriam as K.A.
Najeeb is a judgment by a three-Judge Bench. However, we
would not comment beyond this point since Sukhwinder Singh
@ Gora is also by a coordinate Bench. That apart, from the facts
of that case, it appears that the accused was in custody from
10.01.2024 and bail was granted to him by the High Court on
18.02.2026. At that stage, 2 out of the 24 prosecution witnesses
were examined. It is a debatable issue as to whether a view
could have been taken by the High Court that right to speedy
trial of the accused was being jeopardized. Moreover, clause (2)

17
(2022) 10 SCC 51
18
(2023) 18 SCC 166
19
(2024) SCC Online SC 2730
20
SLP(Crl.) D. No. 43071/2024
21
2026 SCC OnLine SC 881
22
2026 SCC OnLine SC 1939
78

of Article 22 was not an issue before the Bench in Sukhwinder
Singh @ Gora. Therefore, this decision also cannot come to the
aid of the respondent.
50. We are dealing with one of the most important
provisions of our Constitution viz. clause (2) of Article 22. Before
we endeavour to interpret clause (2) of Article 22, it would be
advisable to advert to various decision of this Court telling us
how to go about interpreting a constitutional provision, more
particularly a provision which is included in Part III of our
Constitution as a fundamental right?
23
51. In Sakal Papers (P) Ltd. Vs. Union of India , a
Constitution Bench of this Court was examining the
constitutionality of the Newspaper (Price and Page) Act, 1956
and the Daily Newspaper (Price and Page) Order, 1960. In that
context, the Constitution Bench declared that the Constitution
must be interpreted in a broad way and not in a narrow and
pedantic sense. Certain rights have been enshrined in our
Constitution as fundamental and, therefore, while considering

23
1961 SCC Online SC 124
79

the nature and content of those rights, the Court must not be
too astute to interpret the language of the Constitution in so
literal a sense as to whittle them down. The Court must
interpret the Constitution in a manner which would enable the
citizens to enjoy the rights guaranteed by it in the fullest
measure.
24
52. In the case of M. Nagraj Vs. Union of India , a
Constitution Bench of this Court while examining the challenge
to reservation in promotion held that a constitutional provision
must be construed not in a narrow and constricted sense but
in a wide and liberal manner. This principle of interpretation is
particularly apposite to the interpretation of fundamental
rights. Part III of the Constitution does not confer fundamental
rights; rather, it confirms their existence and gives them
protection. It is a fallacy to regard fundamental rights as a gift
from the State to its citizens. These are basic human rights
available to individuals by virtue of the fact that they are
members of the human race. These fundamental rights are

24
(2006) 8 SCC 212
80

important as they possess intrinsic value. Every foundational
value is placed in Part III as a fundamental right as it has
intrinsic value. A right becomes a fundamental right because it
has foundational value. Fundamental right is a limitation on the
power of the State. A Constitution, and in particular that of
it which protects and which entrenches fundamental rights
and freedoms, is to be given a generous and purposive
construction.
53. A nine-Judge Bench of this Court in IR Coelho Vs.
25
State of Tamil Nadu developed and applied the basic structure
doctrine while examining judicial review of laws placed in
Schedule IX to the Constitution of India. In that context, this
Court held that fundamental rights enshrined in Part III were
added to the Constitution as the check on the power of the
State. The framers of the Constitution have built a wall around
certain fundamental rights, which have to remain forever,
limiting the ability of the majority to intrude upon them.

25
(2007) 2 SCC 1
81

54. A Constitution Bench of this Court in the case of
26
Dr. Jaishri Laxmanrao Patil Vs. Chief Minister considered the
constitutionality of the Maharashtra Socially and Educationally
Backward Classes Act, 2018. While doing so, this Court
observed that the language of the Constitution is not clay in the
hands of the interpreter to be moulded as he or she sees fit. The
language of the Constitution is a source for its purpose. The fact
that we may learn the purpose of the Constitution from sources
external to it does not mean that we can give the Constitution a
meaning that is inconsistent with its explicit or implicit
language. Importantly, this Court held that interpretation
cannot create a new constitutional text.
55. We have only extracted a few of the numerous
judgments of this Court highlighting the importance or
necessity of interpreting a constitutional provision, more
particularly a fundamental right enshrined in Part III of the
Constitution, in a manner which aligns with the constitutional
objective and which does not whittle down the constitutional

26
(2021) 8 SCC 1
82

safeguards. A statute, special or otherwise, cannot be a guide
to interpret the Constitution; rather, it should be the other way
around. To reiterate, a fundamental right must be interpreted
in such a manner that it upholds and furthers the objective of
such a fundamental right.
56. In Jaskaran Jeet Singh Deol , we reminded ourselves
that the Constitution or a constitutional provision cannot be
interpreted in a vacuum. Interpretation of the Constitution
cannot also be left to imponderables in the form of ifs and buts.
57. Applying the above interpretative standards, we have
no hesitation in our mind that the exercise undertaken by the
Orissa High Court in Aryaman Pattnayak while taking the view
that detention of a person leading to temporary disruption of his
liberty in the course of a search and seizure process cannot be
treated as a detention alike arrest runs contrary to the very
grain of our constitutional jurisprudence. There is no such thing
called temporary disruption of liberty. The further view of the
Orissa High Court that a detention is not arrest if it is for brief
questioning but if it goes beyond a short investigatory hold, then
83

it becomes an arrest is constitutionally unsustainable, delving
into a realm of uncertainty. We are afraid, a constitutional
provision, that too, a fundamental right, cannot be interpreted
in such a manner. Similar is the position in respect to the
interpretation of the Madras High Court in Kannan and of the
Kerala High Court in Arun K. Thomas.
58. Having sieved through the judgments of the High
Courts in Aryaman Pattnayak, Kannan and Arun K. Thomas ,
which we have disapproved, let us once again revert back to
Article 22. As noticed supra, the heading of this fundamental
right is protection against arrest and detention in certain cases.
We are concerned with clause (2) thereof which we have already
extracted above and analyzed extensively. Clause (2) says that
every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of 24
hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate
and no such person shall not be detained in custody beyond the
said period without the authority of the magistrate. The key
expression appearing in clause (2) of Article 22 is ‘arrested and
84

detained in custody’. What is the meaning of this expression?
Does it mean that the two crucial words appearing in this
expression, ‘arrest’ and ‘detain’, should be assigned separate
meanings or they mean one and the same thing. It is important
to note that the expression is conjunctive and not disjunctive.
Had it been disjunctive, two separate meanings could have been
assigned to the two words. But the expression being joint and
conjunctive, the two words appearing therein would mean one
and the same thing. This is because the Constitution does not
recognize any detention dehors arrest. Thus, the prescription of
24 hours time period would commence the moment a person is
detained by the arresting authority suspecting him to have
committed an offence, when his liberty is effectively curtailed.
To that extent, the words appearing in clause (2) of Article 22
i.e. ‘arrested’ and ‘detained’ are synonymous. Any attempt to
draw an artificial distinction between ‘arrest’ and ‘detention’
would dilute or negate the fundamental protection guaranteed
by the Constitution under clause (2) of Article 22. Such an
endeavour should be avoided. We must adopt that
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interpretation which enhances and furthers the constitutional
objective.
59. Our above interpretation resonates with the powerful
exhortations of Justice Krishna Iyer in which he
Niranjan Singh
made more than four decades ago. This Court speaking through
Justice Krishna Iyer held that explanations and submissions to
the effect that police have taken a man into informal custody
but not arrested him; have detained him for interrogation but
not taken him into formal custody are terminological dubieties
and are unfair evasions of the straightforwardness of the law.
He called such explanations as equivocatory quibblings and
hide and seek niceties, describing those as a shady facet.
60. We have already referred to Section 57 CrPC
(equivalent provision in BNSS is Section 58) which contains the
constitutional mandate of clause (2) of Article 22. Here the
statute not only speaks of the 24 hours limitation but also
clarifies that detention in custody of a person without a warrant
shall not be for a period which is longer than what is reasonable
considering all the circumstances of the case, which in any
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case, should not exceed 24 hours unless there is a special order
of a magistrate. Therefore, Section 57 CrPC (58 BNSS)
mandates two limitations: firstly, the constitutional limitation
of 24 hours; and secondly, within that 24 hours, the detention
should not exceed what is considered to be a reasonable period
in the facts of that case. This additional but salutary limitation
should be borne in mind not only by the detaining authorities
but also by the magistrates considering remand. In a given case,
even though technically there may not be any breach of the 24
hours timeline, yet if the magistrate is satisfied that detention
was for a period longer than what was reasonable, he or she
may decline remand.
61. There is a reason for insistence on the 24 hours
mandate under clause (2) of Article 22, which is mandatory and
as we have interpreted, would commence from the time of
detention when the person detained is deprived of his liberty.
The endeavour of this Court has always been to eliminate
custodial violence which unfortunately takes place during the
time when a person is under detention and not shown as
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formally arrested, in the process delaying production before the
magistrate. Custodial violence is an unfortunate reality of our
country and is judicially acknowledged. In Khatri, this Court
was confronted with the horrific Bhagalpur blindings of
prisoners where this Court observed that the provisions
inhibiting detention without remand is a very healthy provision
enabling the magistrate to keep a check over police
investigation. Likewise, in D.K. Basu, this Court acknowledged
the prevalence of custodial violence and abuse of police power
in the country and observed with concern that notwithstanding
the constitutional and statutory safeguards, growing instances
of torture and death in police custody was a disturbing factor.
Significantly, this Court recorded that worst violation of human
rights take place during the course of investigation when the
police with a view to extract information or confession resorts
to third degree methods by adopting techniques of screening
arrest by either not recording the arrest or describing the
deprivation of liberty merely as a prolonged interrogation. The
above aspect has also been elaborated in detail by the Bombay
High Court in
Ashak Hussain Allah Detha @ Siddique.
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62. This Court continues to remain concerned with the
issue of human rights abuse in police custody. In Shafhi
27
Mohammad Vs. State of Himachal Pradesh , a two-Judge Bench
of this Court emphasized the necessity for videographing the
crime scene during investigation for which it directed the
Ministry of Home Affairs to the Government of India to
constitute a central oversight body to monitor implementation
and ensure compliance. In this connection, the Bench also
referred to the guidelines issued in D.K. Basu and observed that
this Court with a view to check human rights abuse had
directed installation of CCTV cameras in all police stations as
well as in prisons and highlighted the need to study the CCTV
camera footages by an independent committee.
63. A three-Judge Bench of this Court in Paramvir Singh
28
Saini Vs. Baljeet Singh following Shafhi Mohammad , considered
the question of audio video recording of statements made under
Section 161 CrPC as well as the larger question as to the
installation of the CCTV cameras in police stations generally. The

27
(2018) 5 SCC 311
28
(2020) 7 SCC 397
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larger Bench directed that the State and the Union Territory
Governments should ensure that CCTV cameras are installed
in each and every police station. In order to ensure that no part
of a police station is left uncovered, CCTV cameras should be
installed at all entry and exit points; main gate of the police
station; all lockups; all corridors; the lobby and the reception
area; all verandahs and outhouses; Inspector’s room; Sub-
Inspector’s room; areas outside the lockup room, station hall, in
front of the police station compound; outside (not inside)
washrooms and toilets; duty officers room; back part of the
police station etc. Such CCTV systems must be equipped with
night vision and must necessarily consist of audio as well as
video footage. The data should be preserved for a period of 18
months; and more in the event of a complaint being made of
custodial violence. Additionally, the Bench directed the Union
of India to install CCTV cameras and recording equipments in
the offices of:
(i) Central Bureau of Investigation (CBI)
(ii) National Investigation Agency (NIA)
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(iii) Enforcement Directorate (ED)
(iv) NCB etc.
63.1. The Bench clarified that as most of the above
agencies carry out interrogation in their offices, CCTVs shall be
compulsorily installed in all offices where such interrogation
and holding of accused takes place in the same manner as it
would in a police station.
64. Therefore, it is evident that the endeavour of this
Court has always been to ensure that no custodial violence
takes place during interrogation, which is one of the worst forms
of human rights violations. Therefore, the 24 hours deadline
mandated under clause (2) of Article 22 would mean and
commence from the time when a person is intercepted and
detained by the investigating agency, in this case officials of the
NCB, when his liberty is curtailed.
65. Reverting back to the facts of the present case, it is
evident from the stand of the respondent that appellants were
intercepted at 02:00 pm on 29.09.2025. From this time onwards,
the liberty of the appellants was curtailed in as much as they
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were under the control of the search team constituted by the
respondent. The recovered material were subjected to weighing
and testing on the spot by using electronic weighing scale and
the field narcotic test kit. On being satisfied that the recovered
substance was methamphetamine (Yaba) tablets, the related
NDPS case was registered then and there. Respondent has
stated that the search procedure which started at the place of
interception continued in the office premises of the Customs
Division, Agartala and completed at 05:00 pm on 29.09.2025.
Appellants were shown formally arrested on 30.09.2025 at
11:00 am and 11:15 am respectively whereafter they were
produced before the Judicial Magistrate on 30.09.2025 at 04:45
pm who thereafter remanded them to judicial custody.
66. In view of our discussions and analysis recorded
supra, the arrest of the appellants for the purpose of Article
22(2) of the Constitution of India would be construed to have
taken place at 02:00 pm on 29.09.2025 when they were under
the control and custody of the search team. Therefore, they were
required to be produced before the Judicial Magistrate before
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02:00 pm on 30.09.2025. But the appellants were produced
before the Judicial Magistrate at 04:45 pm on 30.09.2025.
There is, thus, a clear breach of clause (2) of Article 22 of
Constitution of India vitiating the arrest of the appellants and
rendering their continued detention beyond 02:00 pm on
30.09.2025 illegal and unconstitutional.
67. That apart, in terms of Section 58 BNSS (Section 57
CrPC), not only the person detained without a warrant should
be produced before the magistrate within 24 hours, but there is
also a requirement that such detention within 24 hours should
not be for a period which is longer than what is reasonable
considering all the circumstances of the case. As per the stand
of the respondent itself, it is evident that the search and seizure
procedure against the appellants was concluded in the office
premises of the Customs Division, Agartala at 05:00 pm on
29.09.2025. However, the appellants were shown arrested at
11:00 am and 11:15 am respectively on 30.09.2025. Thus, there
is a gap of 18 hours from the conclusion of the search and
seizure procedure and the formal arrest of the appellants. No
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explanation has been given for this delay of 18 hours. 18 hours
in custody without judicial oversight is a long period with
misuse and abuse of authority a clear possibility. Such a period
certainly cannot be construed to be a reasonable period within
the meaning of Section 58 BNSS (Section 57 CrPC).
68. That being the position, appellants are entitled to be
released from custody forthwith.
69. In the circumstances, we would like to summarize
our conclusions as under:
(i) the 24 hours timeline as mandated under clause (2)
of Article 22 of the Constitution of India would
commence from the date and time of detention of the
person detained when his liberty stands curtailed
and not from the time of his formal arrest;
(ii) in the event, such detention continues beyond 24
hours before the person is produced before a
magistrate, he shall be forthwith released from
custody;
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(iii) while computing the 24 hours deadline, no other time
period is permitted to be excluded therefrom except
the time necessary for the journey from the place of
arrest to the court of the magistrate;
(iv) the decisions of the Orissa High Court in Aryaman
Pattnayak, Madras High Court in Kannan and Kerala
High Court in Arun K. Thomas do not lay down the
correct law qua interpretation of clause (2) of Article
22 of the Constitution of India;
(v) the detaining authority should keep in mind not only
the 24 hours deadline mandated by clause (2) of
Article 22 of the Constitution but also ensure that
such detention should not extend beyond a
reasonable period within the 24 hours period
considering the circumstances of the case in terms of
Section 58 BNSS (Section 57 CrPC);
(vi) at the time of production, the magistrate is duty
bound to record the actual date and time of
detention of the person produced before him when
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his liberty stood curtailed and examine whether the
24 hours deadline has been complied with or not
from the time of such detention. If there is breach of
the 24 hours deadline, the concerned person shall
be released forthwith from detention;
(vii) the magistrate shall also examine at the time of
production whether the detention of the person
produced, though is within the time frame of 24
hours, has exceeded the period which can be
construed to be reasonable in the circumstances of
the case. If he is satisfied that detention in custody
has been for a longer period than what is
reasonable, he may decline remand;
(viii) in so far the present case is concerned, for the
reasons cited in paragraphs 65, 66 and 67 above,
the detention of the appellants was not only in
breach of clause (2) of Article 22 of the Constitution
of India but was for a period beyond what can be
construed to be a reasonable period considering all
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the circumstances of the case which was in contravention
of Section 58 BNSS (Section 57 CrPC);
(ix) consequently, we set aside the impugned judgment and
order of the High Court dated 29.04.2026 and direct that
the appellants shall be produced before the jurisdictional
Special Court within a maximum period of 7 days from
today whereafter they shall be released on bail on such
terms and conditions as may be deemed appropriate.
70. A copy of this judgment and order may be circulated
to all Director Generals of Police of the States and Union
Territories as well as to the Registrar Generals of the High
Courts and Directors of State Judicial Academies.
71. Criminal appeals are accordingly allowed. All
pending applications are disposed of.

…...…………………………J.
[UJJAL BHUYAN]

…..….………………………J.
[ATUL S. CHANDURKAR]

NEW DELHI;
NOVEMBER 05, 2026.
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