Custody without formal arrest can be legal in certain cases, says High Court

KOCHI: Keeping a person in custody without formally arresting them during a criminal investigation is not illegal in certain circumstances, the Kerala High Court has ruled. The court noted that such custody can be legally permitted in cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Prevention of Money Laundering Act (PMLA) and the Customs Act, among others. Justice Kausar Edappagath also clarified that summoning a person for questioning after issuing prior notice under Section 179(1) of the Bharatiya Nyaya Sanhita (BNS) does not amount to illegal custody.

The court issued the clarification while considering bail petitions in which the petitioners argued that they had not been produced before a court within 24 hours of their arrest. The High Court said whether a person has been kept in illegal custody must be examined based on the facts and circumstances of each case.

The court also said that authorities must follow proper procedures when keeping a person in custody. These include issuing prior notice, accurately recording the time when a person is taken into custody and formally arrested, producing the person before a magistrate within 24 hours of the arrest, and clearly informing them of the reasons for the arrest. The magistrate must examine the records before taking a decision.

The petitioners were accused in drug, rape and murder cases. The bail plea of Thrissur native T.V. Aneesh was allowed, taking into account the failure to properly record the time when he was taken into custody.

The bail pleas of Malappuram native Mujeeb Rahman, who is accused in a murder case, and Arun K. Thomas, V.A. Sarfas, Rashad Mohammed and P.K. Mohammed Asheel, who are accused in drug cases, were dismissed.