High Court
Facts
{1} cwp1008-25.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1008 OF 20251.Saad s/o Anwar Tamboli PETITIONERSAge – 23 years, Occ – BusinessR/o Kasar Galli, Shivaji Road, Akole, Taluka – Akole, District – Ahmednagar2.Sadik Esan Ulla PathanAge – 47 years, Occ -BusinessR/o Kazi Pura, AkoleTaluka - Akole, District - AhmednagarVERSUS1.The State of Maharashtra RESPONDENTSThrough its Chief SecretaryHome Department, Mantralaya, Mumbai – 322.The Superintendent of PoliceAhmednagar3.Sub-Divisional Police OfficerSangamner, Taluka – SangamnerDistrict – Ahmednagar4.The Police Inspector,Akole Police Station, AkoleTaluka – Akole, District - Ahmednagar.......Mr. K. N. Shermale, Advocate for the PetitionersMrs.S. N.Deshmukh, APP for Respondents - State ....... [CORAM : NITIN B. SURYAWANSHI, & SANDIPKUMAR C. MORE, J. J.] RESERVED ON : 1 st AUGUST, 2025 PRONOUNCED ON: 8 th AUGUST, 2025 {2} cwp1008-25.docJUDGMENT (PER NITIN B. SURYAWANSHI, J.):1.Rule. Rule made returnable forthwith. Heard finally with theconsent of the parties. 2.By this Petition, filed under Articles 226 and 227 of theConstitution of India, the Petitioners seek relief of declarationthat, their arrest on 13th July, 2025 is arbitrary, illegal andunconstitutional, as they were not produced before the learnedMagistrate within 24 hours of their arrest. They also seekquashing of the remand reports and their release on bail inconnection with Crime No. 354 of 2025, registered with AkolePolice Station.3.Brief facts of the case are that:Police Inspector, Akole Police Station, District – Ahilyanagar,conducted a raid at the godown of Accused No.1 Shoyeb ShavidKazi on 13th July, 2025 at 2.30 a.m., situated at Kotul, Taluka –Akole. From the godown, prohibited articles i.e. 77 bags of HiraPan Masale and 33 bags of Roayl 717 Tobacco were seized.Thereafter, the vehicles standing in the said premises werechecked and prohibited items i.e. 110 bags of Hira Pan Masalaworth Rs.46,46,400/- and 51 bags of Roral 717 Tobacco worthRs.10,56,000/- (total Rs.57,02,400/-) were seized along with thevehicles. From Petitioner No.1, one bag each of Hira Pan Masala {3} cwp1008-25.docand Royal 717 Tobacco was seized. From Petitioner No.2, 2 bagsof Hira Pan Masala and 1 bag of Royal 717 Tobacco were seized.4.Thus, including the valuation of prohibited items, vehicles,mobile phones etc. of the Accused and cash amount, there isrecovery of articles worth Rs.1,01,74,750/-.5.FIR is registered by the Drug Inspector at 03.40 a.m. on14th July, 2025 against the Accused Persons. After registration ofthe FIR, the Accused persons were sent for pre-arrest medicalexamination and they were arrested at 04.18 a.m. on 14th July,2025. Accused, including the Petitioners, were produced beforethe learned Magistrate at 04.30 p.m. on 14th July, 2025. ThePetitioners raised a grievance before the learned Magistrate thatthey were in fact arrested at 02.30 p.m. on 13th July, 2025 andsince they are produced before the Court beyond the period of24 hours, their arrest and detention beyond 24 hours, is illegaland therefore, they should be released on bail.Learned Magistrate rejected the said ground holding thatthe Accused were arrested on 14th July, 2025 at 04.18 hours andthey were produced before him within 24 hours. Therefore, theAccused were remanded to police custody up to 18th July, 2025.On 18th July, 2025, the Accused were remanded to Magisterialcustody. However, bail application filed by them was rejected by {4} cwp1008-25.docthe learned Magistrate. The Petitioners have thereafter preferredbail application before the Sessions Court. 6.It is the case of the Petitioners that, they were in factarrested at 02.30 p.m. on 13th July, 2025 and since they wereproduced before the learned Magistrate for remand at 04.30 p.m.on 14th July, 2025, which is beyond 24 hours, as contemplatedunder Article 22 of the Constitution of India and section 58 of theBharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short),their arrest is illegal and, therefore, they are entitled to bereleased forthwith.7.By relying on decisions of this Court at Principal Seat, inWrit Petition No. 54 of 2025 (Hanumant Jagganath NazirkarV/s The State of Maharashtra) and Writ Petition No. 2989 of2025 (Hemang Jadavji Shah V/s The State of Maharashtraand Others), learned Advocate for the Petitioners strenuouslycontended that since the Petitioners were arrested at 02.30 p.m.on 13th July, 2025 and they were produced for remand before thelearned Magistrate at 04.30 p.m. on 14th July, 2025, their custodybeyond 24 hours is illegal and hence the arrest itself is vitiated.He submits that the learned Magistrate has failed to appreciatethis argument in the proper perspective and has erred in notdeclaring the arrest of the Petitioners as illegal in terms of Article {5} cwp1008-25.doc22 of the Constitution of India and Section 58 of the BNSS. Hesubmits that, since Petitioners’ constitutional right, guaranteedunder Article 22 of the Constitution of India, is violated, theirarrest is rendered illegal and the Petitioners are entitled to bereleased forthwith by declaring their arrest illegal and theremand reports are liable to be quashed on this ground alone.8.Per contra, learned APP, by relying on the affidavit ofRespondent No.4 / Police Inspector, Akole Police Station,submitted that, the raid continued from 02.30 p.m. til 06.10 p.m.as huge quantity of prohibited items were seized during the saidraid. Thereafter, the Accused voluntarily accompanied the raidingparty to the Akole Police Station. Then, as per the statutoryrequirement, Drug Inspector was called at the Police Station. Hecame at 10.00 p.m. and thereafter conducted Panchanma of theseized articles. He, then lodged FIR at 03.40 a.m. on 14th July,2025. The Accused were thereafter sent for pre-arrest medicalcheck up and were arrested at 04.10 a.m. on 14th July, 2025, bydrawing arrest Panchanamas.The Accused were taken out of Jail at 02.40 p.m. on 14thJuly, 2025 for production before the learned Judicial Magistrate,First Class, Akole and they were brought in the Court at 02.45p.m., however the Court was busy in daily work and, therefore, {6} cwp1008-25.docthe Accused persons were taken in the Court Hall at 04.30 p.m.He, therefore, submits that there is no merit in the Petition andthe same may be dismissed. 9.Heard learned Advocate for the Petitioners and learned APPfor the Respondents – State, at length. Perused the memo ofPetition, documents annexed with it, papers of investigation andthe report submitted by the Police Inspector, Akole Police Station.10.It is apposite to reproduce relevant provisions i.e. Article 22(2) of the Constitution of India and Section 58 of the BNSS:“22 (2) Every person who is arrested and detained in custody shallbe produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for thejourney from the place of arrest to the court of the magistrate and nosuch person shall be detained in custody beyond the said periodwithout the authority of a magistrate.”58 Person arrested not to be detained more than twenty-fourhours. No police officer shall detain in custody a person arrested withoutwarrant for a longer period than under all the circumstances of thecase is reasonable, and such period shall not, in the absence of aspecial order of a Magistrate under section 187, exceed twenty-fourhours exclusive of the time necessary for the journey from the placeof arrest to the Magistrate's Court, whether having jurisdiction ornot.
Legal Reasoning
{11} cwp1008-25.doc37. It is a constitutional mandate that no person shall be deprived ofhis liberty except in accordance with the procedure established bylaw. The Constitution further directs that the person arrested anddetained in custody shall be produced before the nearest Magistratewithin 24 hours of such arrest. The only time permitted to beexcluded from the said period of 24 hours is "the time necessary forgoing from the place of arrest to the court of the Magistrate". Onlyunder two contingencies can the said direction be obviated. One iswhen the person arrested is an "enemy alien" and the second whenthe arrest is under any law for preventive detention. In all othercases the Constitution has prohibited peremptorily that "no suchperson shall be detained in custody beyond the said period withoutthe authority of a Magistrate17.The above observations are squarely applicable to the factsof the present case. Decision of the Co-ordinate Bench of thisCourt at Principal Seat in Writ Petition No. 2989 of 2025 (supra)also supports the Petitioners’ case.18.For the aforesaid reasons we find that the Petitioners’constitutional right guaranteed under Article 22 (2) of theConstitution of India and statutory right under section 58 of theBNSS is violated in the present case and their arrest is requiredto be declared as illegal. In the result, following order: ORDERa.Criminal Writ Petition is allowed by declaring that the arrestof the Petitioners dated 13th July, 2025 is illegal. {12} cwp1008-25.docb.The Petitioners be released forthwith in connection withCrime No. 354 of 2025, registered with Akole Police Station.c.Rule is made absolute in above terms.d.Jail authorities to act upon authenticated copy of this order. [ SANDIPKUMAR C. MORE ] [ NITIN B. SURYAWANSHI ] JUDGEJUDGE drp/cwp1008-25.doc
Arguments
{7} cwp1008-25.doc11.The Investigating Officer has admitted that the raid wasconducted at 02.30 p.m. on 13th July, 2025. It is the contention ofthe Investigating Officer that since huge quantity of contrabandarticles were found, raid continued from 02.30 p.m. to 06.10 p.m.and thereafter the Accused were called for preliminary inquiryand they voluntarily came at Akole Police Station at 06.50 p.m.There is no merit in the said submission of theInvestigating Officer, since prohibited items were seized from thecustody of the Petitioners and co-accused, obviously, they weredetained by the Investigating Officer at the time of the raid. 12.In “Hanumant Nazirkar”, (supra), this Court, on the pointof arrest / custody has observed“17. The phrase “arrest” is neither defined under the Code ofCriminal Procedure,1973, nor defined under the Indian Penal Code,1860 (IPC) or the Constitution of India. We have not been shown anystatutory definition or meaning of the word “arrest.”18. The word “arrest” is derived from the French word “arrater”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 theexecution of the command of a duly authorised officer. The word“arrest” would mean a restraint or the deprivation of one’s personalliberty. {8} cwp1008-25.doc19. The question of whether a person is under arrest or not must bedecided based on whether they have been deprived of their personalliberty to go where they please. In the legal sense, an “arrest” wouldconsist of taking into custody of another person under authorityempowered by law, for the purpose of holding or detaining him toanswer a criminal charge or of preventing the commission of acriminal offence. It starts with the arrester taking a person into hiscustody by action or words, “restraining him” from movinganywhere beyond the arrester’s control, and it continues until theperson so restrained is either released from custody or broughtbefore a Magistrate. The ‘arrest” is complete when such restraint byan authority commences. The arrest commences with the restraintplaced 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 aview 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 undercompulsion and he, thereafter, submits to such compulsion. Anauthority is said to arrest another person if it prevents the latterfrom freely making their movements and moving according to theirwill. To constitute an arrest, it is necessary that the officers shouldassume custody and control over the person, either by force or withhis consent. “Arrest” is when one is taken and restrained from theirliberty. Even if a person is touched with a view to detaining, it wouldamount to an arrest.”13.Applying aforesaid observations to the facts of the presentcase, it is clear that, at the time of the raid, all the Accusedpersons, including the Petitioners, were present at the spot and itis the contention of the Investigating Officer that from the {9} cwp1008-25.docPetitioners and other Accused persons, prohibited articles wereseized. Obviously, therefore, the Petitioners and other Accusedwere detained by the Investigating Officer at the time of the raiditself. There were restrictions on their movements and, therefore,they were in the custody of the Investigating Officer. We findsubstance in the contention of the Petitioners that they werearrested and/or taken in custody at 02.30 p.m. on 13th July, 2025.14.In the peculiar facts of the present case, statement of theInvestigating Officer that the Petitioners voluntarily came at thepolice station after the raid, is therefore, unacceptable. In thereport submitted by the Investigating Officer, he has stated thatthe Petitioners were taken in custody at 06.10 p.m. on 13th July,2025. For the aforestated reasons, we are unable to accept thesaid statement and it is required to be held that the Petitionerswere arrested at 02.30 p.m. on 13th July, 2025.15.It is the contention of the Investigating Officer that thePetitioners were taken out of jail at 02.40 p.m. on 14th July, 2025for production before the learned Magistrate and they were takento the Court at 02.45 p.m.Admittedly, the Court is situated in the same premises, at adistance of 300 feet from Akole Police Station. We called uponthe Investigating Officer to submit relevant station diary entries, {10} cwp1008-25.docjustifying his stand that the Accused were taken out of jail at02.40 p.m. on 14th July, 2025 and were taken to the Court at02.45 p.m. However, the Investigating Officer has failed toproduce these entries. For non production of relevant stationdiary entries, adverse inference needs to be drawn against theInvestigating Officer that the Accused were not taken out of thejail at 02.40 p.m. and produced in the Court at 02.45 p.m. Fact remains that, the learned Magistrate has observed inthe remand order that the Accused were presented before him at04.30 p.m. It is thus clear that the Petitioners were not producedbefore the learned Magistrate within 24 hours of their arrest andthere is clear violation of constitutional right of the Petitionersunder Article 22 of the Constitution of India and statutory rightunder section 58 of the BNSS. 16.In the decision rendered by Co-ordinate Bench of this Courtat Principal Seat in Writ Petition No. 54 of 2025 (supra), in similarfacts, it is held :36. Under Article 22 (2) of the Constitution of India, only the timetaken for the journey from the place of arrest to the Court of theMagistrate is excluded. A similar provision of exclusion appears inSection 57 of the Cr.P.C. In the absence of any provision in theConstitution or in the Cr.P.C. to exclude the alleged “pre-arrestmedical examination time”, we cannot accept the contention of thelearned APP.