The court in an illegal arrest case held that no notice had been issued to the petitioner under Section 35 of B.N.S.S., 2023, and without issuance of any such notice, the act of the U.P. Police is in clear violation of the provisions of the B.N.S.S.
The court further ruled that police authorities must follow the relevant provisions, including communicating the grounds of arrest, preparing an arrest memo, and informing a relative or friend, failing which the arrest and subsequent detention will be illegal.
The order was passed by a Division Bench of Justice Siddharth and Justice Vivek Saran while allowing a habeas corpus petition filed by Kapil Chugh, challenging the remand order dated May 8, 2026 passed by the Additional Chief Judicial Magistrate, Gautam Budh Nagar.
The petitioner contended that he was already lodged in Sabarmati Central Jail, Gujarat, in a case under Sections 132(1) and 132(5) of the CGST Act, 2017 and was incarcerating from 20.04.2026 but was subsequently released on 13.05.2026 on bail.
He was brought to Gautam Budh Nagar on a B-warrant, where Uttar Pradesh Police allegedly arrested him afresh without supplying an arrest memo or grounds of arrest or informing any relative or friend.
While the additional government advocate submitted that the petitioner is not a law-abiding citizen. He is not residing at the address that is available on record. He has registered his company details on incorrect addresses.
He further submitted that the petitioner was supplied with a memo of arrest containing the grounds of arrest. He was also informed about his right to contact his family members and friends.
However, the court rejected all the contentions of the state.
The Court noted that in the counter affidavit, “no ground of arrest of the petitioner have been brought on record and it is admitted in the counter affidavit that no friend or relative of the petitioner were ever informed about his arrest.”
Relying on the Supreme Court’s ruling in Dhanraj Aswani vs. Amar S. Mulchandani, reported as (2024) 10 SCC 336, the Bench emphasized that,
“….a police officer can formally arrest a person in relation to an offence while he is already in custody in a different offence,” but such arrest does not dispense with statutory protections available to the accused.
The Court further observed that the petitioner was not named in the FIR and that his name surfaced during investigation.
It found that the state was attempting to justify the arrest despite not informing him of the grounds of arrest or furnishing any copy thereof.
Significantly, the bench recorded that “The grounds of arrest has also not brought on record in the counter affidavit.”
On the issue of parallel proceedings, the Court made an important observation,
“Therefore, the present F.I.R appears to be second F.I.R with regard to the same offence. CGST Act is a complete code. Once prosecution is going under the provision of CGST Act, subsequent implication under provision of B.N.S.S by the police is not justified.”
The High Court also found a serious procedural irregularity regarding transit remand. It noted that the petitioner had been brought from Sabarmati Jail in Gujarat to Gautam Budh Nagar in Uttar Pradesh without being produced before a magistrate in Gujarat for transit remand.
The bench significantly noted that,
“There is nothing to indicate that the petitioner was ever produced before any Magistrate seeking his transit remand from state of Gujarat to state of Uttar Pradesh.”
Holding that the mandatory requirements governing arrest and transit remand had not been followed, the Court concluded,
“Therefore, under the totality and facts of the circumstance, the arrest detention and remand of petitioner appears to be illegal and are hereby set aside.”
Accordingly, the Court directed that the petitioner be released forthwith. However, it clarified that the authorities would remain free to proceed afresh against him in accordance with law.
Case: Kapil Chugh vs State of U.P.
Case No: Habeas Corpus Writ Petition No. – 760 of 2026
Date of Order: 23.06.2026
Status: Allowed
