Sanchayita Lahkar

The Kerala High Court Single Bench of Justice C.S. Dias recently exercised its inherent power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita to set aside a remand order and to grant bail to an NDPS accused. The Court directed the petitioner, an accused under Sections 22(c) and 29 of the NDPS Act for alleged possession of 338.16 grams of MDMA, to be released on bail on executing a bond of Rs.1,00,000 with two solvent sureties and to comply with conditions including weekly appearance before the investigating officer, travel restrictions within territorial limits, and a bar on tampering or committing similar offences. Justice Dias observed that since the accused was not brought before the jurisdictional magistrate within the 24-hour period mandated by Article 22(2) of the Constitution, his arrest stood vitiated and he ought to have been granted bail. The High Court’s order restored the petitioner’s liberty subject to safeguards.

The matter concerns proceedings initiated against the petitioner, who was arrayed as the second accused for alleged offences under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. According to the facts recorded in the judgment, the petitioner and another accused were taken into custody at around 12:45 hours on 20.07.2025 for allegedly being found in conscious possession of 338.16 grams of MDMA. His arrest was formally recorded at 12:55 hours on the same day. He was thereafter produced before the Magistrate only at 14:10 hours on 21.07.2025, exceeding the twenty-four-hour constitutional limit.

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The petitioner contended that the delay in production before the Magistrate violated Article 22(2) of the Constitution. The Sessions Judge, as reflected in Annexure 2, found that the production was beyond the mandated period and directed the Superintendent of the District Jail, Palakkad to release the petitioner, though without granting bail. Immediately following this release order, the second respondent rearrested the petitioner at the precincts of the jail and produced him before the Court, after which he was remanded to judicial custody.

The petitioner argued that the rearrest was illegal and that he should have been enlarged on bail once the constitutional violation was established. He relied on the Supreme Court’s decision in Directorate of Enforcement v. Subhash Sharma, asserting that an arrest made in violation of Article 22(2) stands vitiated.

The prosecution opposed the plea by submitting that Section 483(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 permitted rearrest and that the rigour of Section 37 of the NDPS Act applied to any bail consideration. It was also contended that the petitioner had not challenged Annexure 2 before approaching the High Court.

The Court recorded that the Sessions Judge had “unequivocally found that the petitioner was not produced before the Magistrate within twenty-four hours of his arrest as per the mandate under Article 22(2) of the Constitution of India.” It noted that the State had not challenged this finding. Referring to Article 22(2), the Court quoted the constitutional guarantee that “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… and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”

The Court observed that this constitutional protection is “not merely a procedural safeguard but a fundamental bulwark against police excess, to ensure that the personal liberty guaranteed under Article 21 has not rendered a mirage.” The judgment relied on Khatri and others (II) v. State of Bihar, stating that the Supreme Court had “explicitly directing the State and its police authorities to scrupulously observe the constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within twenty-four hours of the arrest.”

The Court then turned to Directorate of Enforcement v. Subhash Sharma, quoting that failure to produce the arrested person within twenty-four hours rendered the arrest “completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India,” and that such continuation in custody “infringes fundamental rights under clause 2 of Article 22…” Further quoting the decision, the Court recorded that “once a Court… finds that the fundamental rights of the accused under Articles 21 and 22… have been violated… it is the duty of the Court dealing with the bail application to release the accused on bail,” since “the arrest in such cases stands vitiated.”

Drawing from the admitted facts, the Court stated that the petitioner was produced before the Magistrate “beyond the twenty-four-hour deadline, which is peremptory and sacrosanct.” It held that although the Sessions Judge noted this breach, “he erred by not enlarging the petitioner on bail,” which “enabled the Police to subvert the constitutional safeguard by arresting the petitioner from the precincts of the prison, rendering Annexure 2 order nugatory.” The Court stated that this action required interference “to undo the consequences of an arrest that stands vitiated.”

The Court concluded that the case was fit for exercising inherent powers under Section 528 of the BNSS to set aside the remand order and enlarge the petitioner on bail.

The Court ordered that “Annexure 3 remand order is set aside. Annexure A2 order is modified, and the petitioner is enlarged on bail.” The petitioner shall be released on bail upon executing “a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the jurisdictional Court,” and ordered that this release would be subject to the conditions that followed.

“The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m. till the complaint is filed. He shall also appear before the Investigating Officer as and when required.” The petitioner “shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever.”

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The petitioner “shall not commit any similar offence while he is on bail,” and that he “shall not leave the territorial jurisdiction of the jurisdictional court without its permission. In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.”

“Applications for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional court.”

Advocates Representing The Parties

For the Petitioner: Sri. P. Mohamed Sabah, Sri. Libin Stanley, Smt. Saipooja, Sri. Sadik Ismayil, Smt. R. Gayathri, Sri. M. Mahin Hamza, Shri. Alwin Joseph, Shri. Benson Ambrose

For the Respondents: Public Prosecutor Sri. M.P. Prasanth

Case Title: Muhammed Nashif U v. State of Kerala & The Station House Officer, Kozhinjampara Police Station, Palakkad
Neutral Citation: 2025: KER:89635
Case Number: CRL.MC NO. 9946 OF 2025
Bench: Justice C.S. Dias