Bombay High Court Declares Arrest Illegal for Violation of Section 58 BNSS and Article 22(2) — “Arrest Commenced When the Petitioner Was Detained at the Airport; Detention by Immigration Officers Was in Furtherance of the LOC with a Clear Direction to Detain and Hand Over to Police”

Court’s Decision:

The Bombay High Court declared the petitioner’s arrest on 18th May 2025 as illegal and in violation of Section 58 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Article 22(2) of the Constitution. The Court directed immediate release of the petitioner. It observed:

“In our view the act of the Immigration Officers to accost the petitioner or detain him on 17th May 2025 at 1730 hours is the act of arrest and therefore the period of 24 hours as contemplated under Section 58 of BNSS and Article 22(2) of the Constitution of India shall begin on 17th May 2025 at 1730 hours.”

Facts:

• The petitioner was arrested based on an FIR registered at 2:14 AM on 14th May 2025 at Malabar Hill Police Station, subsequently transferred to the Economic Offences Wing (EOW).
• Allegations pertained to monetary disputes under an MoU dated 15th August 2024, allegedly involving wrongful gains.
• Petitioner was intercepted at Delhi’s IGI Airport on 17th May 2025 at 17:30 hrs based on a Look Out Circular (LOC) and was handed over to the EOW at 04:30 hrs on 18th May 2025.
• He was then transported to Mumbai and produced before the Magistrate only at 22:45 hrs on 18th May 2025.
• He was formally shown as arrested at 19:30 hrs on 18th May 2025.

Issues:

1. Whether the petitioner’s arrest was in violation of Section 58 BNSS and Article 22(2) of the Constitution.
2. Whether the grounds of arrest were properly communicated under Section 48 of the BNSS.

Petitioner’s Arguments:

• Petitioner’s counsel argued that arrest effectively occurred at 17:30 hrs on 17th May 2025 when immigration officers detained him.
• The delay in producing him before the Magistrate until 22:45 hrs on 18th May 2025 exceeded the 24-hour mandate under Section 58 BNSS and Article 22(2).
• Also contended that Section 48 was violated as relatives/friends were not informed about the grounds of arrest.
• Submitted WhatsApp chats indicating coercive demands for settlement while in custody.
• Relied on the following judgments:
  • Kaushik Rameshchandra Thakkar v. State of Maharashtra
  • Directorate of Enforcement v. Subhash Sharma
  • Hem Prabhakar Shah v. State of Maharashtra
  • Vihaan Kumar v. State of Haryana
  • Kasireddy Upender Reddy v. State of Andhra Pradesh
  • Lalita Kumari v. State of U.P.

Respondent’s Arguments:

• APP submitted that the petitioner was only handed over to EOW at 04:30 hrs on 18th May and arrested at 19:30 hrs on the same day.
• Asserted that production before the Magistrate at 22:45 hrs was within 24 hours from official arrest time.
• Claimed that the petitioner’s father was informed of the arrest grounds.
• Counsel for complainant argued that detention by immigration officials could not be treated as arrest under BNSS.

Analysis of the Law:

• Section 58 of the BNSS and Article 22(2) Constitution require production before a Magistrate within 24 hours of arrest.
• Section 48 BNSS mandates communication of arrest grounds to a nominated person.
• The Court examined the remand report, affidavit by investigating officer, and the LOC, and held that detention by immigration officers was in furtherance of the LOC with a clear direction to detain and hand over to police.

Precedent Analysis:

• Kaushik Rameshchandra Thakkar — Similar facts where detention by immigration led to holding arrest as commencing from that point.
• Subhash Sharma — Confirmed constitutional safeguards under Article 22(2) apply from actual custody.
• Hem Prabhakar Shah — Court held arrest occurred when intercepted via LOC.
• Vihaan Kumar — Addressed implications of delayed production.
• Kasireddy Upender Reddy and Lalita Kumari — Reaffirmed statutory and constitutional rights upon arrest.

Court’s Reasoning:

• The arrest commenced at 17:30 hrs on 17th May 2025 when the petitioner was detained at the airport.
• Immigration detention was at the behest of EOW; it was not a neutral action.
• Production at 22:45 hrs on 18th May was beyond the 24-hour limit.
• The arrest memo recording 19:30 hrs on 18th May as the arrest time was not supported by factual chronology.
• Arguments that arrest grounds were conveyed to the petitioner’s father were untenable, especially since he was the complainant.
• There was no evidence that the father was a nominated person under Section 48.

Conclusion:

• The petitioner’s arrest was illegal for violating Section 58 BNSS and Article 22(2) of the Constitution.
• There was also non-compliance with Section 48 BNSS regarding communication of arrest grounds.
• The arrest was declared illegal and petitioner was ordered to be released forthwith.

Implications:

• This judgment reinforces strict compliance with constitutional and statutory safeguards during arrest and remand.
• Confirms that immigration detention pursuant to LOC amounts to arrest, triggering 24-hour production requirement.
• Underscores importance of informing nominated persons under Section 48 BNSS.
• Could serve as precedent in cases involving delayed remand post immigration detention.

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