A police station cannot launder an unlawful detention by later recording a formal arrest and obtaining a remand order. The Allahabad High Court has held that where custody begins in violation of Articles 21 and 22 of the Constitution, the arrest, the remand and the proceedings that follow are all tainted. It reached this conclusion by applying the Doctrine of Fruit of the Poisonous Tree, usually invoked for illegally obtained evidence, to the constitutional law of detention and arrest.
A Division Bench of Justice Atul Sreedharan and Justice Achal Sachdev decided Ravi Chaurasiya and Another v. State of U.P. and 4 Others, Habeas Corpus Writ Petition No. 1371 of 2026, on 28 September 2026. The judgment bears the neutral citation 2026:AHC:203069-DB. The Bench ordered the petitioner’s release, awarded compensation of ₹30,000 and asked the Police Commissioner, Prayagraj, to fix responsibility on the officers involved.
Background of the Case
According to the petition, the corpus was taken into custody by Soraon police (Prayagraj) from Ayodhya on 14.09.2026 at about 9.00 pm and brought to the police station the same day. No arrest was shown. His mother went to the station the next day to ascertain his well-being, and a habeas corpus petition was filed on 15.09.2026.
On 16.09.2026, the police formally arrested him, recorded the arrest in G.D. Entry No. 15, had him medically examined and produced him before a Magistrate, who remanded him to judicial custody. The arrest memo gives the time of arrest as 10.45 am that day. The FIR, registered under the Gangsters Act, alleges he purchased property belonging to a gangster.
The Bench had called for the police station’s CCTV footage, but the S.H.O., who is also the Investigating Officer, filed a counter affidavit. Paragraph 8 stated that, by “inadvertent mistake”, the G.D. entry recording that the petitioner was brought to the station on 15.03.2026 at 03.40 A.M. was never made. The Bench treated this as a “candid admission” and did not view the footage.
Can a Subsequent Arrest Cure an Initially Illegal Detention?
After the Court found the early detention unlawful, the question was whether the petitioner could still be held on the strength of the later arrest and remand.
The petitioner’s Senior Counsel argued that the initial detention was itself unlawful and violated Articles 21 and 22, so the arrest at 10.45 am on 16.09.2026 gained no legitimacy from it. He sought release.
The State argued that the petitioner could not be released without bail from a competent court. He was a co-accused in a criminal case and in judicial custody under a valid remand order by the Judicial Magistrate. In the State’s view, he was entitled only to compensation for the unlawful period. It also contended that there was no precedent for setting aside a later arrest and judicial custody because of an earlier illegal detention.
The question was therefore whether illegality in the first act of custody carries forward into the arrest and remand that follow it.
Doctrine of Fruit of the Poisonous Tree: Its Application to Constitutional Rights
The Court began with the doctrine’s origin. It has its genesis in American criminal jurisprudence, where it bars the use of evidence gathered unlawfully. The Bench’s illustration is a police entry into a dwelling without a search warrant. If drugs are recovered, the occupant cannot be prosecuted for possessing them, because the search was unlawful. The judgment notes there are exceptions to this rule but did not go into them. It summarises the idea thus:
“Literally, the doctrine means that where the tree itself is poisonous every fruit it bears is also poisonous.”
The Bench then acknowledged the limit on the doctrine in India. Indian courts, including the Supreme Court, have held that it cannot be applied to the law of evidence. Under Indian law, admissibility rests on relevance. If a piece of evidence bears on a fact in issue or a material fact, the manner of its recovery during investigation is immaterial, subject only to the restrictions in the Evidence Act and now the BSA.
The Bench did not challenge this position. It took the doctrine out of the law of evidence and examined it “in its application to constitutional law, with specific reference to civil liberties protected under Part III of the Constitution of India.”
The doctrine, it held, is applicable to the law relating to detention and arrest. The evidentiary doctrine asks whether an unlawfully gathered piece of evidence can be used. The Bench’s constitutional version asks whether an arrest or remand that follows an unlawful detention can stand. The unlawful detention is the “poisonous tree”. The “fruit” is every subsequent act of the police or the Magistrate, even one that would otherwise be legitimate:
“In a situation where the subsequent arrest follows an unlawful detention of the corpus, the arrest is rendered unlawful as so are the proceedings of remand by the judicial magistrate as the genesis leading to the arrest was the unlawful detention of the accused violating his right under Art 22.”
The Court then stated the principle in general terms. Where detention in police custody violates Articles 21 and 22, the subsequent arrest, even with valid grounds of arrest provided, and the remand proceedings, even if they appear legitimate, “all stand vitiated”. In its words, “illegality perpetuates in all subsequent actions and proceedings.”
Applied to the facts, the Court held that the corpus was in unlawful detention from 15.09.2026 at 3.45 am until the arrest memo was prepared on 16.09.2026 at 10.45 am. He had not been produced before a Magistrate within twenty-four hours. The formal arrest was the “fruit” that sought to legitimise the entire action, and it could not do so:
“The subsequent arrest memo and the remand does not legitimize the initial unlawful detention of the corpus.”
The Bench also noted that the arrest appeared to have been made on account of the habeas petition filed on the morning of 15.09.2026.
Articles 21 and 22: Constitutional Safeguards Against Illegal Detention
On the facts, the Court first rejected the S.H.O.’s explanation. It held the omission to be gross negligence, invoking the maxim culpa lata dolo aequiparatur, and stated that “in law, gross negligence is an intentional wrong doing”. An officer of his experience, the Court said, ought to have recorded in the G.D. that the corpus was brought to the station and lodged in the lockup at 3.40 am on 15.09.2026. The Court was “unable to accept” that the omission was inadvertent and called it a “conscious omission” to escape the charge of illegal detention. It reasoned that the formal arrest was made only after the police learnt of the petition, to escape liability.
The Court also laid down the underlying duty:
“Whenever a citizen is apprehended by the police, there is a legal and a constitutional duty on the police apprehending a suspect for the purpose of investigation/interrogation to ensure that his custody time is reflected in the G.D from the time he is taken into custody.”
The consequences ran in two directions. The custody beyond twenty-four hours without production before a Magistrate was held to violate Article 22.
The resulting arrest and remand were held vitiated through the doctrine. The Court also noted that the S.H.O.’s affidavit did not show any communication with the Commissioner, Prayagraj, about the corpus being in the station from 15.09.2026 until his arrest.
Right to Legal Counsel Under Section 38 BNSS
The Court held that during the unlawful detention, Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023, “was never complied with”. It was an admitted position that the petitioner was neither given the right to have counsel of his choice present during investigation nor informed of it.
The Bench acknowledged that Section 38 speaks of a right available upon arrest and interrogation. It nevertheless refused to allow a process in which police avoid arrest to escape this duty. In the Court’s description, the police call a suspect to the station, interrogate him for 5–6 hours, and then make him an accused on the basis of his self-incriminatory statements. This would violate the right against self-incrimination, as the statements would be made without counsel.
The Court therefore held that the duty under Section 38 “also arises when a suspect is taken for interrogation to the police station”. Such a suspect must be informed, even before arrest or being made an accused, of his right to have counsel of his choice present during interrogation. The Court drew a limit: this is “but not throughout the interrogation as mentioned under Section 38 of the BNSS.”
The pre-arrest obligation is thus to inform the suspect of the right and to permit counsel’s presence in the police station during interrogation, not to extend the full Section 38 right to a suspect who has not been arrested. The consequence of non-compliance is stated as follows:
“Failure to do so, would vitiate all information given by the said suspect, especially self-incriminatory statements, which even otherwise given to a police officer are not relevant under the Evidence Act.”
Supreme Court Precedent and the Question of Re-Arrest
The Bench drew support from Jaskaran Jeet Singh Deol v. State of Punjab [MANU/Supreme Court/1054/2026], which it described as a recent landmark judgment. As described in the High Court’s order, the Supreme Court considered the re-arrest of a person released because his arrest violated Article 22.
In paragraph 19.3, it held that where the arrest is unconstitutional under Article 22(1), the remand orders are also vitiated, and neither the filing of a chargesheet nor the Magistrate’s cognisance validates the arrest. The High Court “extends the same principal” to detention in police custody that itself violates Articles 21 and 22.
The State submitted that the police’s right to re-arrest had been protected by Supreme Court judgments. The High Court accepted this, but only on conditions. The right to re-arrest “shall be available, subject to the strict compliance” with Jaskaran Jeet Singh Deol.
The Bench, again describing that decision, said that where a person is released because his arrest or detention was held unlawful, a prospective arrest can be made only upon a warrant issued by the Magistrate concerned. The officer who carried out the initial detention or arrest is to be proceeded against departmentally.
Allahabad High Court’s Decision and Directions
The petition was allowed and disposed of with these directions:
- Release: The petitioner is to be released forthwith “if not wanted in any other case”. The release therefore does not extend to custody in any other case.
- Compensation: ₹30,000 is to be paid to the petitioner, recoverable from those responsible.
- Inquiry: The Commissioner, Prayagraj, is requested to inquire, fix responsibility and liability on those guilty of illegal detention, and take appropriate steps under law.
- Displeasure: The Court recorded its displeasure at the S.H.O.’s conduct. If the inquiry finds negligence on his part, the displeasure is to be entered in his service record.
- Pen drive: The pen drive produced by the State was returned.
Legal Significance of the Judgment
The ruling closes a gap that police practice can exploit: custody that goes unrecorded until an arrest memo is prepared. The Bench held that the date on which custody actually began matters, and that a belated arrest memo does not change it. The Court also did not leave the matter at compensation. It treated the earlier illegality as capable of invalidating what followed, including a judicial remand.
The judgment has limits worth noting. It is a Division Bench decision of the High Court, and its extension of the doctrine to detention, arrest and remand rests on the Court’s own reasoning and its reading of Jaskaran Jeet Singh Deol. The evidentiary position that Indian law does not exclude evidence merely because of how it was recovered is left untouched.
The ruling does not bar future lawful arrest either. Re-arrest is expressly preserved, but only on a Magistrate’s warrant and with departmental action against the officer responsible for the original detention. The Section 38 holding is also calibrated. It requires that a suspect brought in for interrogation be informed of the right to counsel’s presence, without extending the full right available after arrest.