Elaborating that there is a fundamental distinction between detention and arrest, the Orissa High Court (Cuttack Bench) clarified that detention is temporary, investigatory, and based on reasonable suspicion, while an arrest is formal, accusatory, and prosecutorial, based on probable cause or reasonable belief of involvement in a crime.
The High Court held that even though there was a delay in recording a formal arrest with whatever reasons assigned by the Narcotics Control Bureau (NCB) with respect to seizure of LSDs, the accused’s (petitioner’s) movement can be restrained or confined, and if he was produced before the Magistrate not beyond 24 hours from the date of arrest, then there is no violation of Section 57 CrPC read with Article 22(2) of the Constitution.
The Court noted that during a search, the presence of the suspect is necessary, and the resulting restraint cannot be treated as an arrest in the eyes of the law. Therefore, the Court refused any relief from the detention; however, it left it open for the petitioner to raise other grounds, such as procedural shortfalls under the NDPS Act and the quantity of the substance seized, at the time of the consideration of his bail application.
A Single Judge Bench of Justice R.K. Pattanaik observed that a de facto arrest could be considered to have occurred when the petitioner was picked up by the NCB, after the search and seizure concluded. From that point, it was probable for him to believe his liberty was curtailed due to the alleged recovery of contraband.
The Bench found that the formal arrest is shown in the night, and of course, it could have been earlier, sometime after the seizure of the contraband substance, but it may be that the NCB was inclined to go for further enquiry, hence, the petitioner was taken for interrogation. Thus, the Bench reiterated that the detention by itself does not amount to arrest, and when the petitioner was taken into custody by the NCB, only then was there probable cause or belief regarding his involvement in the commission of a crime and from that time onwards, it would not be incorrect to say that his liberty was taken away.
The Bench therefore concluded that when one is physically restrained or not permitted to leave and detained after a search and seizure was concluded and ultimately picked up by the law enforcement agency, he may be said to have been arrested even though a formal arrest is recorded at a later point in time.
Briefly, the Narcotics Control Bureau (NCB) team, acting on prior information, reached the petitioner’s residence and conducted a search operation, leading to the seizure of a commercial quantity of LSD. The petitioner was picked up by the NCB officials from his residence, and after recording a formal arrest, the petitioner was produced before the court, where the petitioner, a 22-year-old engineering student with no prior criminal antecedents, has been in judicial custody since July 22, 2025.
The petitioner had approached the High Court contending that a formal arrest was made much after the confinement, and therefore, the detention is more than 24 hours, when the petitioner was required to be produced before the court before the expiry of such period. Thus, the petitioner claimed that the Court could not have allowed further detention in custody when there was non-compliance of Section 57 CrPC read with Section 58 of BNSS, alleging it to be an unauthorised and gross violation of Article 22(2) of the Constitution.
Appearances:
Advocate Shreya Patnaik, for the Petitioner
DSGI P.K. Parhi and CGC J. Panda, for the Opposite Party
