The Allahabad High Court has delivered a significant judgment on the procedural safeguards surrounding arrest and remand, emphasizing the mandatory compliance with Section 35 of the Bharatiya Nyaya Sanhita (BNS), 2023 and the Code of Criminal Procedure (CrPC). The Court held that an arrest without supplying grounds of arrest, failing to inform relatives, and violating transit remand rules renders the detention illegal, entitling the petitioner to release under a writ of habeas corpus.
Background & Facts
The Dispute
The petitioner, Kapil Chugh, was arrested on 08.05.2026 by the Uttar Pradesh Police in Gautam Budh Nagar while he was already in judicial custody at Central Jail, Sabarmati, Gujarat, pursuant to a B-warrant issued by the Additional Chief Judicial Magistrate (ACJM), Gautam Budh Nagar. The arrest was made in connection with FIR No. 287/2025 and FIR No. 288/2025, both registered under Sections 318(4), 338, 336(3), 340(2), 345(2), and 61(2) of the Bharatiya Nyaya Sanhita (BNS), 2023. The petitioner was remanded to 14 days of judicial custody without being supplied an arrest memo, grounds of arrest, or reasons to believe.
Key Facts
- The petitioner was initially arrested on 20.04.2026 in Case Crime No. 25342/2026 under Sections 132(1) and 132(5) of the CGST Act, 2017 and was incarcerated at Central Jail, Sabarmati, Gujarat.
- He was released on bail on 13.05.2026 but was subsequently produced before the ACJM, Gautam Budh Nagar, on 08.05.2026 pursuant to a B-warrant issued by the court.
- At 6:00 PM on 08.05.2026, the petitioner was forced to sign a "soochna patra" (information memo) prepared by the police, and he was formally arrested at 6:45 PM.
- No arrest memo, grounds of arrest, or reasons to believe were supplied to the petitioner, his son, or his counsel.
- No friend or relative of the petitioner was informed about his arrest, violating the mandate of Section 35(3) of the BNS, 2023 and the principles laid down in Satendra Kumar Antil v. Central Bureau of Investigation and V. Senthil Balaji v. State.
- The petitioner was remanded to 14 days of judicial custody (till 21.05.2026) by orders dated 08.05.2026 in both FIRs.
- The petitioner was not named in the original FIRs, and his name surfaced only during the investigation.
Procedural History
- 20.04.2026: Petitioner arrested in Gujarat under CGST Act and incarcerated at Central Jail, Sabarmati.
- 13.05.2026: Petitioner released on bail in the Gujarat case.
- 08.05.2026: Petitioner produced before ACJM, Gautam Budh Nagar, pursuant to B-warrant; forced to sign "soochna patra" at 6:00 PM; arrested at 6:45 PM.
- 08.05.2026: Remand orders passed for 14 days of judicial custody in FIR No. 287/2025 and FIR No. 288/2025.
- No date: Petitioner filed Habeas Corpus Writ Petition No. 761 of 2026 before the Allahabad High Court.
Relief Sought
The petitioner sought the following reliefs:
- A writ of habeas corpus directing the respondents to produce the petitioner and declare his detention, arrest, and remand as unconstitutional, illegal, and arbitrary.
- A writ of certiorari setting aside the order dated 08.05.2026 passed by the ACJM, Gautam Budh Nagar, and all consequential proceedings.
- Release of the petitioner from custody.
- Costs and any other relief deemed fit by the Court.
The Legal Issue
The central legal questions before the Court were:
- Whether the arrest and remand of the petitioner were illegal due to the failure to supply grounds of arrest, arrest memo, and reasons to believe, as mandated by Section 35 of the BNS, 2023 and judicial precedents?
- Whether the violation of transit remand rules under Section 267 of the CrPC rendered the petitioner’s detention illegal?
- Whether the petitioner’s arrest in Uttar Pradesh, while he was already in judicial custody in Gujarat, complied with the procedural safeguards laid down in Dhanraj Aswani v. Amar S. Mulchandani?
Arguments Presented
For the Petitioner
- The petitioner’s arrest was illegal as no arrest memo, grounds of arrest, or reasons to believe were supplied, violating Section 35(3) of the BNS, 2023 and the principles laid down in Satendra Kumar Antil v. Central Bureau of Investigation and V. Senthil Balaji v. State.
- The petitioner was not informed about his right to notify his relatives or counsel about his arrest, contravening the judgments in Mihir Rajesh Shah v. State of Maharashtra and Vihaan Kumar v. State of Haryana.
- The petitioner was already in judicial custody in Gujarat, and the Uttar Pradesh Police could not have arrested him without following the procedure laid down in Dhanraj Aswani v. Amar S. Mulchandani, which mandates that an accused already in custody must be produced before the jurisdictional Magistrate for issuance of a production warrant (PT warrant).
- The arrest violated the rules of transit remand under Section 267 of the CrPC, as the petitioner was not produced before a local Magistrate in Gujarat for endorsement of the warrant.
- The present FIRs appeared to be a second FIR for the same offence, as the petitioner was already prosecuted under the CGST Act, 2017, which is a complete code. Subsequent implication under the BNS, 2023 was unjustified.
For the Respondent
- The petitioner was not a law-abiding citizen and was evading trial by providing incorrect addresses for his companies.
- The arrest memo and grounds of arrest were supplied to the petitioner in Gujarat, and there was no requirement for a second memo of arrest in Uttar Pradesh as he was already in judicial custody.
- The judgment in Dhanraj Aswani v. Amar S. Mulchandani was not applicable as the petitioner was already in custody.
- The provisions of Section 35(3) of the BNS, 2023 did not apply as the petitioner was already in custody and could not have been called by notice.
- The petitioner had fabricated bills for tax evasion and was an international criminal, undeserving of any relief.
The Court's Analysis
The Court conducted a detailed analysis of the procedural lapses in the petitioner’s arrest and remand, relying on statutory provisions and judicial precedents to underscore the illegality of the detention.
Violation of Section 35 of the BNS, 2023
The Court observed that Section 35 of the BNS, 2023 mandates the supply of grounds of arrest and reasons to believe to the accused at the time of arrest. The failure to comply with this provision rendered the arrest illegal, as held in V. Senthil Balaji v. State and Pankaj Bansal v. Union of India. The Court noted:
"Neither the arrest memo nor grounds of arrest were supplied to the petitioner at the time of his arrest and since the respondents have failed to comply in not issuing arrest memo and / or written ground of arrest, the petitioner is liable to be released."
The Court further emphasized that the grounds of arrest were not even produced before the ACJM, Gautam Budh Nagar, compounding the illegality.
Failure to Inform Relatives or Counsel
The Court relied on Mihir Rajesh Shah v. State of Maharashtra and Vihaan Kumar v. State of Haryana to hold that the police are obligated to inform the relatives or counsel of the arrestee about the grounds of arrest. The counter-affidavit admitted that the petitioner was only informed of his right to inform his relatives or counsel, but no actual information was provided. This failure violated the statutory and constitutional safeguards.
Violation of Transit Remand Rules
The Court held that the arrest violated the rules of transit remand under Section 267 of the CrPC. When an accused is arrested outside the jurisdiction of the issuing court, the police must produce the accused before a local Magistrate to obtain a transit remand for transporting the accused to the issuing state. In this case, the petitioner was arrested from Sabarmati Jail, Gujarat, and brought to Gautam Budh Nagar, Uttar Pradesh, without being produced before any Magistrate in Gujarat. The Court observed:
"If a police officer travels to another state to execute a warrant, he must take the warrant to an Executive Magistrate or a local police officer in the new jurisdiction for endorsement. When an accused is arrested outside the issuing state, the accused must be produced before the local Executive / Judicial Magistrate, if the issuing court is far away. The police must obtain a transit remand to transport the accused to the state from where the warrant was issued."
The absence of any record indicating compliance with this procedure rendered the petitioner’s detention illegal.
Double Prosecution Under CGST Act and BNS
The Court noted that the petitioner was already prosecuted under Sections 132(1) and 132(5) of the CGST Act, 2017, which is a complete code for offences related to tax evasion. The subsequent registration of FIRs under the BNS, 2023 for the same offence appeared to be an attempt at double prosecution, which was unjustified.
Application of Dhanraj Aswani v. Amar S. Mulchandani
The Court applied the principles laid down in Dhanraj Aswani v. Amar S. Mulchandani, which held that an accused already in custody can be formally arrested for a different offence, but the police must apply for a production warrant (PT warrant) under Section 267 of the CrPC before the jurisdictional Magistrate. The accused must then be produced before the Magistrate, who can remand the accused to police or judicial custody or enlarge them on bail. The Court found that the Uttar Pradesh Police failed to follow this procedure, rendering the arrest illegal.
The Verdict
The Allahabad High Court allowed the writ petition and set aside the petitioner’s arrest, detention, and remand as illegal. The Court directed the immediate release of the petitioner from jail. However, the respondents were left free to proceed afresh against the petitioner in accordance with law.
What This Means For Similar Cases
Mandatory Compliance with Grounds of Arrest
- Practitioners must ensure that grounds of arrest, arrest memo, and reasons to believe are supplied to the accused at the time of arrest, failing which the arrest is liable to be set aside.
- The judgment reaffirms the principles in V. Senthil Balaji v. State and Pankaj Bansal v. Union of India, making it clear that non-compliance with Section 35 of the BNS, 2023 is fatal to the legality of the arrest.
Transit Remand Rules Are Non-Negotiable
- Police officers executing warrants outside their jurisdiction must produce the accused before a local Magistrate to obtain a transit remand under Section 267 of the CrPC. Failure to do so renders the arrest and subsequent detention illegal.
- This judgment serves as a strict warning to investigating agencies to adhere to procedural safeguards, particularly when dealing with inter-state arrests.
Double Prosecution Risks
- Prosecuting an accused under multiple statutes for the same offence (e.g., CGST Act and BNS) may be viewed as double prosecution and is likely to be struck down by courts.
- Practitioners should argue that specialised statutes like the CGST Act are complete codes and subsequent prosecutions under general laws like the BNS are unjustified.
Rights of Accused Already in Custody
- The judgment clarifies that even if an accused is already in custody, formal arrest for a different offence requires compliance with Section 267 of the CrPC and the procedure laid down in Dhanraj Aswani v. Amar S. Mulchandani.
- The police must apply for a production warrant and produce the accused before the jurisdictional Magistrate, who can then decide on remand or bail.
