Time Taken To Complete Inquiries Before Formal Arrest Cannot Be Excluded Under Article 22(2) Constitution: Delhi High Court

Notably, the Bench relied on the recent Supreme Court judgment in Sujit Das and Ors. Etc. v. Union of India, 2026 INSC 1195 which noted that that the 24-hour period under Article 22(2) of the Constitution of India for producing a person before a magistrate therefore begins when the person’s liberty is curtailed, not when the arrest is formally recorded.

The Court held that the offence stood revealed when 28 capsules were ejected at the airport itself, so the accused should have been produced then, even if further recovery was to follow. Following its coordinate Bench in Kitoko Ngiembo Alain v. Customs 2026:DHC:1338, it noted that remand could have been taken at the hospital if needed, and rejected Customs’ plea that arrest could await identification of the contraband, and held that Section 103(8) of the Customs Act only dispenses with production before a Magistrate for an order for screening or X-ray and does not dilute Article 22(2). It also noted that the accused had been in custody for about two years and two months, with only eight of 23 witnesses examined.

A Single Bench of Justice Sachin Datta observed, “Learned counsel for the respondent submits that the petitioner was submitted to hospital to ensure the safety of his life and the period may not be counted as detention period…The contention of the learned counsel for the respondent that the petitioner could not have been arrested until the nature of the contraband was ascertained, cannot be accepted, in view of the mandate of Article 22(2) of the Constitution of India as explained in Sri Sujit Das and Ors. Etc. (supra)…Article 22(2) admits of no exclusion for the time taken to complete the inquiries before a formal arrest”.

Advocate Meghan appeared for the petitioner and Puneet Singhal, SPP appeared for the respondent.

The petitioner, a Liberian passport holder said to be a resident of Lagos, Nigeria, arrived at IGI Airport, Terminal 3, from Dubai on September 7, 2024. Customs officers acting on intelligence intercepted him. His baggage X-ray and the door frame metal detector revealed nothing, but he ejected 28 capsules in the customs preventive room. He admitted having ingested more capsules and consented to medical procedures.

At Safdarjung Hospital he ejected 56 more on September 8 and 9. In all, 84 capsules were recovered, with about 1,660 grams (net) of white powder that tested positive for cocaine. He was discharged on September 10, 2024, formally arrested on September 11, 2024 at about 4 pm, and produced before the Trial Court that evening. The Special Judge, NDPS-02, Dwarka Courts, had dismissed his bail application on March 9, 2026, in a Customs complaint under the NDPS Act.

Customs argued that the time taken for hospitalisation was not delay, that arrest was not possible until the contraband was identified, that the quantity far exceeded the commercial quantity, and that Section 103(8) applied as the petitioner had consented to the removal.

It held that Section 103(8) only dispenses with production before a Magistrate for an order for screening or X-ray, and does not dilute Article 22(2). Citing Union of India v. Chidiebere Kingsley Nawchara, it also observed that special statutes cannot become vehicles of indefinite detention.

The Court granted regular bail on a personal bond of ₹50,000 with two sureties of the like amount.

Cause Title: Shadrach Nwogbo v. Customs (Neutral Citation: 2026:DHC:10035)

Appearances:

Petitioner: Advocate Meghan.

Respondent: Senior Public Prosecutor Puneet Singhal and Advocate P. Sai Leshanth.

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