Bombay High Court: The present petition was filed seeking to issue a direction/writ of certiorari and/or any other similar writ, order, and direction of like nature, to declare the petitioner’s arrest dated 18-5-2025 as illegal and unnecessary and order his immediate release in a case with Economic Offences Wing, Mumbai (‘EOW’). The Division Judge Bench of Gauri Godse and Somasekhar Sundaresan, JJ., held that there was breach of requirements under Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS, 2023’), and the detention of the petitioner in custody without producing him before the nearest Magistrate within stipulated time of 24 hours was completely illegal and infringed his fundamental rights under Articles 22(2) and 21 of the Constitution. The Court declared that the petitioner’s arrest dated 18-5-2025 was illegal and ordered his immediate release.
Background
On 14-5-2025, on an oral complaint and statement by the petitioner’s brother, a FIR was registered with the Malabar Hill Police Station, wherein the allegation was related to a MOU dated 15-8-2024 and the money that was to be distributed pursuant to the terms and conditions agreed between the parties to the MOU. Thereafter, a Look Out Circular was issued and after the FIR was registered for the offences punishable under Sections 316(5) and 318(4) of Bharatiya Nyaya Sanhita, 2023, the complaint was transferred to the EOW.
The dispute was between the petitioner on one hand and his brother and father on the other hand, and the said dispute was sought to be resolved before a mediator, but during mediation, the complaint was filed against the petitioner. The immigration authorities apprehended the petitioner on 17-5-2025 at the IGI Airport, while he was travelling to Delhi, and was detained in the immigration office at the airport from 5:30 pm on 17-5-2025. The petitioner’s custody was handed over to the EOW officers and was later remanded to police custody till 21-5-2025. Thereafter, on further application, the petitioner was remanded to judicial custody till 6-6-2025.
It was contended that the petitioner’s arrest was illegal based on the time of arrest and not producing him before the Magistrate within 24 hours as required under Section 58 of BNSS, 2023 and Article 22(2) of the Constitution. Further, it was submitted that the petitioner was informed about the grounds of arrest, but his relatives, friends, or any other person nominated by him were not informed about the grounds of arrest.
Analysis, Law, and Decision
The Court noted that the petitioner was taken into custody on 17-5-2025 at 5:30 pm by the immigration department at Delhi airport; was handed over to the EOW officers at 4:30 am at IGI Airport and was brought to Mumbai around 9:30 am and was produced before the Magistrate only at 22:45 pm on 18-5-2025. The Court further noted that the FIR was registered at 2:14 am on 14-5-2025 and a request for LOC was immediately made on the same day and Clause (i)(e) of the letter dated 14-5-2025 stated that “detain and handover to local Police Station”. Thus, the Court stated that the request made for issuing LOC was to detain the petitioner, hand him over to the local police, and inform the originator.
The Court opined that the the act of the Immigration Officers detaining the petitioner on 17-5-2025 at 5:30 pm was the act of arrest and therefore the period of 24 hours as given under Section 58 of BNSS, 2023 and Article 22(2) of the Constitution would begin on 17-5-2025 at 5:30 pm. But the petitioner was produced before the Magistrate on 18-5-2025 at 22:45 pm, which exceeded 24 hours since the arrest. Thus, there was a violation of the petitioner’s right guaranteed under Article 21 of the Constitution for noncompliance with Section 58 of BNSS, 2023 and Article 22(2).
The Court noted that the settlement talks were going on between the family members before the mediator and after the petitioner was taken into custody, the WhatsApp chats between the family members indicated that the petitioner’s wife was instructed to reach out to EOW officers and hand over money. Thus, the Court agreed with the petitioner’s contention that the intention to keep the petitioner in custody was to recover the amount that was sought to be settled in the mediation between the family members.
The Court expressed its shock and surprise on the contention that the ground of arrest supplied to the petitioner’s father would amount to sufficient compliance under Section 48 of BNSS, 2023, particularly when the petitioner’s father had himself filed a complaint against the petitioner. Thus, the Court agreed with the petitioner’s contention that the grounds of arrest were not supplied as contemplated under Section 48 of BNSS, 2023.
The Court relied on in Kaushik Rameshchandra Thakkar v. State of Maharashtra, 2025 SCC OnLine Bom 1493, and held that there was breach of requirements under Section 48 of BNSS, 2023, and the detention of the petitioner in custody without producing him before the nearest Magistrate within stipulated time of 24 hours was completely illegal and infringed his fundamental rights under Article 22(2) of the Constitution. Further, the petitioner’s fundamental right to liberty guaranteed under Article 21 was also violated.
The Court, after considering the nature of the dispute and the allegations made against the petitioner, opined that it did not find any such tearing hurry to initiate action to take the petitioner into custody with such zeal and enthusiasm. Thus, the Court declared that the petitioner’s arrest dated 18-5-2025 was illegal and unnecessary and ordered his immediate release.
[Hemang Jadavji Shah v. State of Maharashtra, Writ Petition No. 2989 of 2025, decided on 30-5-2025]
Advocates who appeared in this case:
For the Petitioner: Ravi Prakash, Senior Advocate, Munaf Virjee, Aditya Dewan, Vikram Sutaria, Debopriyo Moulik, Zain Shroff, Sagar Shetty i/b Hrituraj Singh Rajput and AMK Law
For the Respondents: Amit Desai, Senior Advocate i/b Nikhil S. Kamble, Archishmati Chandramore for intervener; S. V. Gavand, APP for the State; Anand Bagade, Unit-5, GC-3 EOW Mumbai
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