In a gold seizure case, the Allahabad High Court (Lucknow Bench) has ruled that Article 22(2) binds Customs officers just as it binds police, and an illegal remand order can be challenged under Article 227. The Court held that 24-hour period under Article 22(2) of the Constitution runs from the moment the accused is effectively detained or his liberty is curtailed, and not from the time the formal arrest memo is prepared by the authorities.
The Court also held that constitutional guarantee under Article 22(2) extends to every person arrested and detained in custody, irrespective of whether the arresting authority is a police officer, Customs officer, or any other agency, and Section 104 of the Customs Act itself recognises this duty. Further, where an arrested person is not produced before the nearest Magistrate within 24 hours of effective detention, the arrest itself is vitiated and any remand order passed in continuation of such illegal custody is also vitiated as being violative of Articles 21 and 22 of the Constitution.
The Court said that legality of a judicial remand order passed by a Magistrate can be challenged by invoking the power of superintendence under Article 227 of the Constitution, and the remedy of habeas corpus is not the only available recourse against an illegal remand. The illegality in the initial remand order can be challenged only till the stage of cognizance on the charge sheet; once cognizance is taken, the accused must resort to the statutory remedy of bail to challenge the violation of constitutional rights.
A Single Judge Bench of Justice Subhash Vidyarthi observed that Article 22(2) of the Constitution mandates that every person arrested and detained in custody must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate’s court, and no person can be detained beyond that period without the Magistrate’s authority. Section 58 of the BNSS similarly prohibits detention beyond 24 hours without a Magistrate’s special order under Section 187.
The Court placed reliance on the Kerala High Court’s decision in Biswajit Mandal v. Narcotics Control Bureau [2025 SCC OnLine Ker 6017], which held that the 24-hour period commences not from the time the arrest is formally recorded by the police, but from the time when the accused was effectively detained or his liberty was curtailed. The Court noted that the failure, refusal, or omission to record an arrest does not preclude periods of curtailed liberty from constituting arrest.
The Court also relied on the Supreme Court’s decision in Directorate of Enforcement v. Subhash Sharma [2025 SCC OnLine SC 240], where it was held that when an accused is not produced before the nearest Magistrate within 24 hours of being taken into custody, the arrest is rendered completely illegal as it violates Article 22(2), and the continuation of custody without such production is illegal and infringes fundamental rights under Articles 21 and 22. The Court further noted that once a Court finds that the fundamental rights of the accused under Articles 21 and 22 have been violated, it is the duty of that Court to release the accused on bail, as the arrest stands vitiated.
The Court observed that in the present case, the illegality in the remand order would become inconsequential only after cognizance is taken, which stage had not yet arrived as the investigation was still underway and the charge sheet was yet to be filed. The Court also rejected the respondent’s preliminary objection that the scope of Article 227 is limited and that the petitioners should have filed a habeas corpus petition instead. The Court held that where a person is aggrieved by an order of judicial remand passed by a Magistrate, the legality of that order can be challenged by invoking the power of superintendence under Article 227.
The Court observed that the guarantee under Article 22(2) extends to ‘every person who is arrested and detained in custody’ and does not depend on the status of the arresting authority. The constitutional mandate binds Customs officers just as it bound the Directorate of Enforcement officers in the case of Subhash Sharma. The Court also noted that Section 104 of the Customs Act itself requires that a person arrested under that provision be taken without unnecessary delay to a Magistrate, which is the statute’s own recognition of the same duty.
Briefly, the petitioners, Sandeep Jaiswal and another, were taken into custody after their car accidentally collided with a police vehicle, which led the police to discover 10 kg of gold in their possession. The police at Police Station Talgram, District Kannauj, first took them into custody on Aug 22, 2026. After the GST Department officials examined the matter and concluded it did not concern them, the Customs Department officials arrived at the police station and took the petitioners into their custody on Aug 23, 2026, bringing them to the Customs Office in Lucknow, the same day.
The seizure formalities were completed at the Customs Office in Lucknow on Aug 23, 2026, and a seizure memo recorded that the petitioners’ statements under Section 108 of the Customs Act were taken at Police Station Talgram on Aug 22, 2026. The petitioners underwent medical examination on Aug 23, 2026, and the Customs officials prepared the memo of arrest on Aug 23, 2026. They were taken to a Magistrate in the late evening of Aug 23, 2026, for remand but were brought back without being produced before the Magistrate. A second medical examination was conducted on Aug 24, 2026, after which they were produced before the Magistrate, who remanded them to judicial custody through the impugned order dated Aug 24, 2026.
The petitioners challenged the remand order by filing a petition under Article 227 of the Constitution of India before the Allahabad High Court, contending that their production before the Magistrate beyond 24 hours of effective detention violated Article 22(2) of the Constitution and Section 58 of the BNSS.
