Arrest memo not conclusive proof of time of arrest: Punjab & Haryana High Court

The Punjab and Haryana High Court has ruled that the arrest memo cannot be taken as a conclusive proof of the time of arrest of accused [Anuj Kumar Singh v Union of India].Justice Sumeet Goel said that the 24-hour period under Section 57 of Code of Criminal Procedure (CrPC) or Section 58 of Bharatiya Nagarik Suraksha Sanhita (BNSS) begins from the exact moment of physical arrest. “The clock of liberty begins the moment an individual’s volition is subsumed by the arresting authority’s coercive power and he/she is no longer free to depart, regardless of when a formal declaration is made,” the Court said.The Court further said there is no straight-jacket formula for determining the exact time of arrest as it is a question of fact that will depend upon the facts and circumstances of a particular case. However, it also explained that the time of arrest can be determined by considering the following: Whether the individual concerned was kept in the police station/ office of the investigating agency overnight;whether such individual had freedom to get his own food etc;whether the individual was freely permitted to meet his friend(s)/ relative(s); whether the petitioner could leave the police station/ office of the investigating agency on his own discretion etc. .In this regard, the Court emphasised that the magistrate before whom the arrestee is produced has a “non-delegable solemn duty” to act proactively and look through the documentary veil of the timeline provided by the arresting authority.“The duty of the magistrate or court, before whom an arrestee is produced is not a mere ministerial act of recording presence, but a solemn, judicial interrogation of the arresting authority’s narrative,” it said..The Court made these observations while dealing with a case challenging the custody of Anuj Kumar Singh, a partner and director in three pharmaceutical companies, who was arrested by the Narcotics Control Bureau (NCB) from Uttarakhand in November 2025. The accused was alleged to have been part of an organised operation illegally diverting psychotropic drugs into the black market in violation of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.On October 31, 2025, the NCB had searched Singh’s residence in Dehradun and also issued him a notice under Section 67 of the NDPS Act. The notice asked Singh to appear before NCB at its office in Chandigarh-Mohali on November 1..As per NCB, Singh voluntarily agreed to travel to Chandigarh along with the investigating team and they departed from Dehradun at around 11 PM on October 31 and reached Chandigarh between 3 am and 4 am on November 1. He was formally arrested by NCB on 09:30 PM on November 1 and produced before the magistrate on November 2 at around 2 PM. He was then remanded to custody.Challenging his custody before the High Court, Singh’s counsel argued that he was initially detained by the NCB beyond the period of 24 hours without any requisite judicial order. It was submitted that he was in custody right from the time his premises were searched in Dehradun. However, the prosecution argued that he had voluntarily agreed to travel with the NCB team. The Court was also told that mobile phone use was permitted during the travel from Dehradun to Chandigarh..Entry(s) contained in police records or arrest memos are merely declaratory and do not constitute infallible or conclusive proof of the time of arrest.Punjab and Haryana High Court.Considering the submissions and the relevant law, the Court noted that the term ‘arrest’ is not defined anywhere in the criminal code. The Court then examined the dictionary meaning of the word.“The term ‘arrest’ is a term of art representing a state of affairs where an individual’s autonomy is subsumed under the control and supervision of an authority acting under the colour of law. For the purposes of Section 57 Cr.P.C./58 BNSS/Article 22(2), whether an individual has been ‘arrested’ or not, depends upon the factual imposition of restraint through physical acts or verbal commands,” the Bench said.It added that the moment some form of police surveillance and restriction on the movements of an individual by the police or investigating agency begins, he is said to have been arrested or detained..The Court said the nomenclature like “detention for questioning”, “custody for inquiry” or similar expression by the investigating agency is wholly immaterial and legally irrelevant for the purposes of determining whether the individual has been arrested or not.The time recorded in the arrest memo or other police records is a mere procedural formality that cannot be treated as a definitive or infallible index of actual time of arrest, the Court emphasized.“To grant such records a status of absolute verity would be to allow the concerned authorities (investigating agency) to act as the sole auditor of its own compliance, thereby reducing a constitutional safeguard to a matter of administrative whim. Whether an individual is under ‘arrest’ is a question of fact, not of nomenclature. To hold otherwise would be to allow the Rule of Law to be defeated by a semantic sleight of hand. The record is merely a post facto declaration; the de facto restraint that triggers the clock of liberty,” the Bench said..However, the Court also said that a clear distinction must be made between the coercive detention and the genuine investigative functions.“There are instances where an individual is summoned for merely joining investigation, production of documents, recording of statement. In such instances, where there is no palpable fetter upon the ambulatory providence of the individual and he remains at liberty to depart the precincts of the police station at his own will; retains unhindered access to his mobile phone to communicate with the world at large; and may be accompanied by friends and legal acquaintances, it cannot be termed as coercive detention,” the Court explained..Looking into the facts of the case, the Court said that it was "highly unbelievable" that the petitioner would have chosen to voluntarily accompany the NCB team instead of making his own arrangements to travel the next day along with his lawyer or relatives. It also found that NCB itself had accepted before the trial court that the accused was apprehended from Dehradun.“Perusal of remand application dated 02.11.2025, remand application dated 07.11.2025, remand application dated 11.11.2025 and remand application dated 13.11.2025 moved by NCB (for police remand/ judicial remand) indubitably reflects that it was the specific stand of the NCB before the concerned Court that it had apprehended the petitioner from Dehradun (Uttarakhand) on 31.10.2025,” it noted.Thus, the Court concluded that Singh was actually in coercive custody of NCB right from the time in Dehradun. It, therefore, proceeded to order release of the accused.“It is, thus, clear that preparation of arrest memo of the petitioner at about 09:00 P.M. on 01.11.2025 is merely a paper transaction. Since this Court has found that the petitioner was in coercive NCB detention since at about 11:00 P.M. on 31.10.2025 till about 02:00 P.M. on 02.12.2025 (when he was produced before the concerned Court), arrest/ detention of the petitioner is clearly beyond the prescribed period in Section 58 of BNSS, 2023 which renders his arrest/ custody illegal,” the Bench said..Senior Advocate Preetinder Singh Ahluwalia with advocates Rahil Mahajan, Kadambari Bhan and Lovejeet Poonia appeared for the petitioner.Special Public Prosecutor Sourabh Goel with advocates Deify Jindal and Anju Bansal appeared for the NCB.[Read Order]