Detention Of A Person In Pursuance Of Lookout Notice Amounts To 'Arrest': Bombay HC Declares Arrest Of A Trader Illegal
|The Bombay High Court has observed that when a person is detained based on a Look Out Circular (“LOC”), his ‘arrest’ begins at his interception and, therefore, any non-compliance with the Constitutional safeguards guaranteed under Article 22(1) and (2) of the Constitution and Section 50 of the Code of Criminal Procedure, 1973 (‘CrPC’) will make his arrest illegal.
The Division Bench of Justice Bharati Dangre and Justice Manjusha Deshpande held, “The aforesaid discussion with reference to the authoritative pronouncements on the point of ‘Arrest’, lead us to an inference that the custody of the petitioner right from his interception at 10:00 p.m. on 13/08/2024, at Ahmedabad Airport, amounts to his arrest, which, being non-compliant with the Constitutional safeguards guaranteed under Article 22(1) and (2) of the Constitution and Section 50 of the Code of Criminal Procedure make his arrest illegal being violative of his fundamental rights…We therefore declare the arrest of the petitioner to be illegal, as a result, subsequent remand orders remanding him to police custody are declared as illegal.”
Senior Advocate Aabad Ponda appeared for the Petitioner whereas APP JP Yagnik appeared for the Respondent.
A writ petition was filed seeking the issuance of the writ of Habeas Corpus seeking release of Hem Prabhakar Shah, a Singapore based trader. He also sought directions to quash and set aside the remand order as being not in accordance with the law.
The brief facts of the case were that the Petitioner was flying to Ahmedabad, India from Singapore on August 13, 2024. Upon landing in Ahmedabad, he was intercepted and detained by the Immigration officers around 10.00 p.m., allegedly based on an LOC issued at the insistence of the Respondent. It was his case that without giving any further information, he was transferred to the custody of Sardar Vallabhbhai Patel International Airport police station and was detained in the police lock-up. The officer arrived in Ahmedabad at about 3.00 p.m. and the petitioner was brought to Mumbai by Air. The petitioner was shown to be arrested at 23.08 p.m. on August 14, 2024, by the Azad Maidan police station. The next day, at around 12.30 p.m., the petitioner was produced before the Vacation Court and the respondent sought remand.
It was the case of the Petitioner that arrest was illegal since the grounds of arrest were not communicated to him, which is a mandate as prescribed in Article 22(1) of the Constitution along with the corresponding provision in the form of Section 50 of the CrPC, which make it imperative for every police officer or any person exercising the power of arrest, without warrant to forthwith communicate the full particulars of the offence for which he is arrested or other grounds of arrest.
He also submitted that a person arrested and detained in custody, must be produced before the nearest Magistrate within 24 hours of arrest and the only period which is permitted to be excluded is the time necessary for going from the place of arrest to the Court of the Magistrate, and according to him, these directions can be obviated only when the person arrested is an ‘enemy alien’ or when the arrest is under any law for preventive detention.
The Court referred to the provisions of ‘arrest’ as given under Chapter V of the CrPC. “The process adopted by the respondent clearly falls foul of Section 57 of the Code, which has prescribed that no police officer shall detain in custody a person arrested without warrant for a period more than 24 hours.”, the Court said.
After considering the contents of the LOC, the Court observed that the Petitioner was produced before the Magistrate on August 15, 2024, at 12:30 p.m., therefore, in totality he was detained for almost 30 hours till his production. It also observed that this was clearly in the teeth of Section 57 of the CrPC, amounting to the violation of the fundamental right of the petitioner guaranteed under clause (2) of Article 22 of the Constitution.
Another aspect, which was considered by the Court, was regarding the non-furnishing of the grounds of arrest.
“When repeatedly asked whether the petitioner was served with the grounds of arrest in writing, but not a single document to that effect is placed before us, which would have persuaded us to repele the contention advanced on behalf of the petitioner that the arrest is in flagrant violation of Section 50 of the Code of Criminal Procedure, as well as Article 22 (1) of the Constitution. What is contained in the remand application are the reasons for his arrest, which cannot be equated with the ‘ground of arrest’.”, the Court observed.
Accordingly, the Court partly allowed the writ petition by declaring the arrest of the Petitioner as illegal and directed the Respondent to release him from custody, however, refused to grant a stay of the investigation.
Cause Title: Hem Prabhakar Shah v. The State of Maharashtra (Neutral Citation: 2024:BHC-AS:36016-DB)
Appearances:
Petitioner: Senior Advocate Aabad Ponda, Advocates Kushal Mor, Manavendra Mishra, Akhilesh Singh, Adithi Rao, Marmik Shah, Tanmay K.
Respondent: APP JP Yagnik