Detention at Airport, Not Formal Arrest, Starts the 24-Hour Clock: Gauhati HC Grants Bail in NDPS Customs Case

Gauhati High Court holds that a customs detainee at LGBI Airport was in effective custody from 1:30 a.m., and production before a magistrate nine hours after the 24-hour limit vitiated the arrest.

The Gauhati High Court has granted bail to Hemanta Bordoloi, a passenger detained at Lokpriya Gopinath Bordoloi International Airport, Guwahati, after customs officers discovered 2,540 grams of a white powdered substance suspected to be heroin concealed inside the structure of his checked-in trolley bag. Justice Sanjeev Kumar Sharma, sitting singly, held that for the purposes of Article 22(2) of the Constitution of India and Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023, custody begins at the moment of physical detention — not at the point of a formal arrest memo. Since Bordoloi was detained no later than 1:30 a.m. on 23 September 2025 but was produced before the Chief Judicial Magistrate, Kamrup (M), only after 10:30 a.m. on 24 September 2025, the 24-hour constitutional limit had expired, vitiating the arrest and entitling him to bail.

The Seizure at LGBI Airport

On 22 September 2025, customs officials of the LGBI unit conducted routine baggage screening of passengers arriving on AirAsia Flight No. FD 124 from Vientiane (Laos) via Don Mueang. A suspicious item appeared in the baggage scanner at the apron area. The bag was set aside until its owner claimed it.

Bordoloi came forward and acknowledged the bag as his. He had three pieces of luggage: an olive-green trolley bag, a hard-case dark grey trolley bag, and a black handbag. When questioned about the grey trolley bag, he said it contained only personal belongings. Acting on suspicion, customs officers issued a spot summons to Bordoloi under the NDPS Act, 1985, and — with his consent — first opened the olive-green bag, which was clean. They then examined the dark grey bag.

After removing visible contents, the bag still felt unusually heavy. Bordoloi denied knowledge of any concealed items. Officers then dismantled the bag using tools and found two packages: a blue plastic package wrapped in carbon paper and sealed with yellow tape, and a pouch of carbon paper sealed with brown tape. Both contained a white powdered substance. The combined weight was recorded as 2,540 grams, placing it in the category of commercial quantity under the NDPS Act.

A complaint was filed by Inspector Mippun Kangkan Pegu of the LGBIA Customs Division before the Chief Judicial Magistrate Court, Guwahati, dated 22 September 2025.

The Bail Petition and the Competing Arguments

Bordoloi approached the Gauhati High Court under Section 483 of the BNSS, 2023, seeking bail in connection with Customs Case No. 01/CL/NDPS/LGBIA/GHY/2025-2026.

His counsel argued two procedural failures. First, though the arrest took place in the late hours of 22 September 2025, Bordoloi was produced before the magistrate only on 24 September 2025 — beyond the 24-hour limit mandated by Article 22 of the Constitution and Section 58 of the BNSS. Second, the mandatory notice and safeguards under Sections 47 and 48 of the BNSS were not properly served before the arrest was effected. Both failures, it was submitted, vitiated the arrest and the subsequent remand.

The Standing Counsel for the Customs Department countered by drawing a distinction between detention and formal arrest under Section 42 of the NDPS Act. Relying on State of Punjab v. Balbir Singh, 1994 Legal Eagle (SC) 287, and Karnail Singh v. State of Haryana, 2009 Legal Eagle (SC) 1114, he argued that Section 42(1)(d) requires an officer first to detain and search a person, and only then — if the officer thinks it proper — to formally arrest him. The 24-hour clock, he submitted, should run from the time of the formal arrest, not the initial detention. On that calculation, Bordoloi was produced within 24 hours of his formal arrest at around 4:30 p.m. on 23 September 2025 and no illegality arose.

The Customs also relied on a Bombay High Court decision in Ram Kotumal Issrani v. Directorate of Enforcement and Ors., 2024 Legal Eagle (BOM HC) 5876, where an arrest was not held illegal in similar circumstances and the Supreme Court declined to interfere.

The Court's Reasoning: Detention Is Custody

Justice Sharma began by reading Section 42(1)(d) closely. The provision empowers an authorised officer to “detain and search, and, if he thinks proper, arrest” a person believed to have committed an offence under the NDPS Act. The court observed that the formal arrest under this provision is a continuation of the initial detention — the person detained during a search under Section 42 could not, during any part of that process, simply have walked away. Treating the detention and the formal arrest as two separate events for the purpose of the constitutional clock was, the court held, an impermissible reading of the provision.

The court drew support from the Supreme Court's decision in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, as approved in State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222. In Niranjan Singh, the Supreme Court explained the core meaning of custody: “the law has taken control of the person.” Any other reading, the apex court had warned, amounts to “unfair evasions of the straightforwardness of the law.” Justice Sharma found this principle directly applicable to a person detained under Section 42 of the NDPS Act.

The court also examined Directorate of Enforcement v. Subhash Sharma, (2025) SCC OnLine SC 240, relied on by Bordoloi's side. In that case, the accused was detained at IGI Airport, Delhi, at 11:00 a.m. on 5 March 2022, formally arrested at 1:15 a.m. on 6 March 2022, and produced before the court at 3:00 p.m. on 6 March 2022. The Supreme Court calculated the 24-hour period from the time of detention — not from the formal arrest — and held the arrest vitiated. Justice Sharma acknowledged that the Supreme Court in Subhash Sharma did not state in express terms that the 24-hour period runs from the time of detention irrespective of formal arrest. But in effect, he found, the Supreme Court applied precisely that principle on the facts before it.

Against this, the Bombay High Court decision in Ram Kotumal Issrani was distinguished. The accused in that case had appeared before the Investigating Officer in response to a summons, a materially different circumstance from Bordoloi being stopped and detained at an airport apron.

The court also rejected the Customs Department's argument that a person merely required to remain at the spot during a Section 42 or Section 43 search — and free to leave once the search is over — is not in custody. The court held that once a person is formally arrested pursuant to Section 42, it is a continuation of the initial detention under the same provision, and the person was never free to leave from the moment of that initial detention.

Applying the Timeline

The facts on the timeline were not in dispute. The Customs Department's own brief note stated that Bordoloi was detained at LGBI Airport at around 1:30 a.m. on 23 September 2025 and formally arrested later that day at around 4:30 p.m. The 24-hour limit therefore expired at 1:30 a.m. on 24 September 2025.

The court found that even allowing for approximately one hour of travel time from LGBI Airport to the court of the Chief Judicial Magistrate, Kamrup (M) at Guwahati, Bordoloi was produced before the magistrate only after 10:30 a.m. on 24 September 2025 — at least nine hours after the constitutional window had shut.

This delay, the court held, had the effect of vitiating the arrest and rendering further detention untenable. Once a court dealing with a bail application finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution have been violated in the course of the arrest, it is the duty of that court to release the accused on bail. The court followed the principle laid down in Subhash Sharma that when an arrest is vitiated, bail cannot be denied on the ground that the accused has not satisfied the twin conditions prescribed for bail under special statutes.

Order

Justice Sanjeev Kumar Sharma allowed Bail Application No. 3964 of 2025 by order dated 21 August 2026. Hemanta Bordoloi is directed to be released on bail upon furnishing a personal bond of Rs. 1,00,000 with two sureties of the like amount, one of whom must be a resident of Assam, to the satisfaction of the Chief Judicial Magistrate, Kamrup (M).

The following conditions were imposed:

• Bordoloi shall not abscond and shall remain available for the remainder of the trial.
• He shall not hamper or tamper with evidence.
• He shall not commit any illegal activities or offences, including offences under the NDPS Act.
• He shall not intimidate, harass, or attempt to influence any witnesses.