Arrest and remand vitiated after NDPS accused were produced beyond 24 hours, Orissa High Court grants bail

The petitioners sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in connection with Excise Satellite Unit, Jeypore P.R. No. 142 of 2025–26, corresponding to T.R. Case No. 106 of 2025, involving an alleged offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Shyam Sundar specifically pleaded violation of Section 58 of the BNSS read with Article 22(2) of the Constitution; the Court permitted the same legal issue to be considered in Romeo Adakatia’s case as well.

The prosecution records stated that information was received at 9.00 a.m. on 23 August 2025, although the Arresting Officer later claimed that “9.00 a.m.” had been mistakenly recorded instead of “9.00 p.m.”

The arrest memos contained overwritten dates, changing 23 August 2025 to 24 August 2025, while the Officer-in-Charge’s signatures continued to bear the date 23 August 2025.

Although the petitioners were shown as arrested at 1.50 a.m. and 2.00 a.m. on 24 August 2025, the Court inferred from the contemporaneous records that they had been detained much earlier, probably shortly after 9.00 a.m. on 23 August 2025.

They were produced before the Special Judge at 7.30 p.m. on 24 August 2025, from a place approximately 80 kilometres away.

Whether the petitioners were produced before a Magistrate within the period of twenty-four hours prescribed by Article 22(2) of the Constitution and Section 58 of the BNSS, excluding only the time necessary for journey.

Whether the apparent delay and discrepancies in the arrest records rendered the petitioners’ arrest and subsequent remand illegal or vitiated.

Whether the petitioners were entitled to bail on the ground that their arrest and remand were constitutionally and statutorily invalid.

The Court applied Article 22(2) of the Constitution, which requires every arrested and detained person to be produced before the nearest Magistrate within twenty-four hours of arrest, excluding the time necessary for journey, and prohibits detention beyond that period without Magistrate’s authority.

Section 58 of the BNSS embodies the corresponding statutory safeguard against detention beyond twenty-four hours without production before a Magistrate.

Section 43(1) of the BNSS provides that arrest occurs when the arresting officer or other person actually touches or confines the person to be arrested, unless the person submits to custody by words or conduct.

The Court distinguished “custody” from “arrest,” observing that every arrest involves custody, though custody may exist without formal arrest; a person detained or confined by a law-enforcement agency is nevertheless under duress and cannot be kept beyond the constitutional period without judicial authorization.

Where the constitutional time limit is breached, the arrest is illegal or vitiated, and the subsequent remand also stands vitiated.

The Court rejected the explanation that the reference to 9.00 a.m. in Form C2 was merely a clerical error for 9.00 p.m., because the form expressly stated that the information was received at “9 o’clock in the morning” during patrolling duty, followed immediately by detection of the alleged offence.

The overwritten arrest dates and the Officer-in-Charge’s signature dated 23 August 2025 further undermined the prosecution’s claim that the petitioners were arrested only at 1.50 a.m. and 2.00 a.m. on 24 August 2025.

Treating the petitioners’ custody as commencing at approximately 10.00 a.m. on 23 August 2025, the twenty-four-hour period expired at about 10.00 a.m. on 24 August 2025.

Even after allowing approximately three hours for the journey from the place of occurrence, production at 7.30 p.m. on 24 August 2025 was beyond the permissible period.

Consequently, the Court held that the arrest violated Article 22(2) and Section 58 of the BNSS, and that the subsequent judicial remand was also vitiated.

Their arrest and subsequent remand were therefore vitiated.

Both bail applications were allowed, and Shyam Sundar and Romeo Adakatia were directed to be released on bail upon furnishing bonds of ₹1,00,000 each with two solvent sureties for the like amount, subject to the satisfaction of the court in seisin of the case and such further conditions as that court might impose.

The Court directed communication of the order to the concerned court and jail authorities.