The Kerala High Court recently commended two second-year law students of MS Ramaiah College of Law, Bengaluru for their assistance as amici curiae in helping it decide an important legal question. [Biswajit Mandal v. Inspector]
While hearing a bail plea in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case, Justice Bechu Kurian Thomas noted that law interns Nikhina Thomas and Neha Babu were watching the proceedings.
"Considering the importance of the question involved, and on noticing the commitment with which two law interns were watching the proceedings, this Court deemed it fit to seek their assistance. The two interns who were present in Court expressed their willingness and hence this Court appointed Ms. Nikhina Thomas and Ms. Neha Babu, second year students of Ramaiah College, Bengaluru, as Amici Curiae to assist the Court," the order stated.
The accused sought bail after he was booked for allegedly possessing 26.92 kg of ganja. The central issue before the Court was whether the 24-hour deadline under Article 22(2) of the Constitution started from the moment of formal arrest of the accused being recorded or from the effective curtailment of the accused's liberty.
Article 22(2) mandates that any person arrested and detained in custody must be produced before the nearest magistrate within 24 hours of their arrest, excluding the time taken for the journey to the court.
The accused's counsel submitted that his client was detained beyond 24 hours, as he was taken into custody at 3 pm on January 25 and formally arrested at 2 pm the next day, but produced before the magistrate only at 8 pm on January 26.
The appointed amici curiae argued that the 24-hour period within which an accused is to be produced before a magistrate begins when the accused's liberty is effectively curtailed and not when the arrest is formally recorded.
They relied on the seizure mahazar of January 25, which showed that the petitioner was in custody from 3 pm that day but produced before the Magistrate only at 8 pm the next day, indicating illegal detention.
The students referred to the Supreme Court's rulings in DK Basu v. State of WB (1997) and Joginder Kumar v. State of UP (1994), to emphasise that unrecorded periods of custody amounted to illegal detention and potential human rights violations.
The Court also noted that police and investigating agencies often misused the term 'arrested' and 'detained' to claim that the 24-hour period begins only after the arrest memo is prepared.
Criticising such an approach, the Court said that the true legal standard to be followed was to analyse the time from when the person is physically restrained or deprived of their freedom.
"Thus, whenever there is a complete restraint on the freedom of movement or a person is held against his interests in curtailment of his liberty by a person in authority, it can be said that the said person is under arrest. Actual restraint either by word or action or conduct would suffice..The failure, refusal or omission to record an arrest or continuation of an interrogation for prolonged periods without recording arrest, shall not preclude those periods of curtailed liberty as constituting arrest," the Court added.
Applying these principles, the Court observed that the accused was detained well before the formal arrest was recorded, creating an unrecorded period of custody, which constituted as illegal detention.
Accordingly, the petitioner was granted bail by the Court with certain conditions.
The Court commended the contribution of both law students, stating,
"Before concluding, this Court places on record, its appreciation for the assistance rendered by Ms. Nikhina Thomas and Ms. Neha Babu, the Amici Curiae - the growing buds of the noble profession."
The accused was represented by Advocate NB Fathima Sulfath.
Special public prosecutor R Vinu Raj appeared for the Narcotics Control Bureau.
[Read Order]