24-hour detention begins at time of actual custody, not formal arrest: Kerala HC

Kochi: The Kerala High Court has ruled that the 24-hour period for producing an accused before a magistrate, as mandated under Article 22(2) of the Constitution, begins the moment a person’s liberty is effectively curtailed, not when police formally record the arrest.

Justice Bechu Kurian Thomas clarified that the clock starts running from the time of actual detention or curtailment of liberty, regardless of when an arrest memo is prepared. The decision arose in a bail plea where the accused claimed he was detained beyond the permissible period without judicial approval.

According to case records, the petitioner was taken into custody at 3 pm on January 25 by the Narcotics Control Bureau for alleged possession of contraband. His arrest memo was prepared almost 23 hours later, at 2 pm the next day. He was produced before the magistrate at 8 pm on January 26, more than 29 hours after initial detention.

The Amici Curiae argued that delaying the recording of an arrest, while keeping an accused in custody, creates an unrecorded period of detention that is unlawful. The Court noted that such practices could lead to human rights violations, as these periods are vulnerable to abuse.

Citing Supreme Court rulings in D K Basu v State of West Bengal and Joginder Kumar v State of UP, the bench emphasised that no one is above the law, and even the most notorious offender is entitled to fairness.

The judgment reaffirmed that deprivation of liberty, whether through physical restraint or submission to police authority, amounts to arrest under Section 43 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Failure or refusal to record such an arrest does not nullify the fact of custody. The court granted bail to the Petitioner-accused.
(With inputs from LiveLaw)