Police Cannot ‘Forget’ To Record Custody; Later Formal Arrest, Remand Cannot Cure Illegal Detention: Allahabad HC

Allahabad High Court has held that a subsequent formal arrest and judicial remand cannot legitimise an initial illegal detention, applying the “Fruit of the Poisonous Tree” doctrine to constitutional protections under Article 21(protection of life and personal liberty) and Article 22 (protection against arrest and detention in certain cases).

The American ‘Fruit of the Poisonous Tree’ doctrine ordinarily concerns the exclusion of evidence obtained through an unlawful search or other constitutional violation. It means that if the original action is unlawful, any subsequent action flowing directly from that illegality may also be treated as tainted.

The bench of Justices Atul Sreedharan and Achal Sachdev noted that Indian courts have not adopted the Fruit of the Poisonous Tree doctrine as a general rule of evidence, but it was using the doctrine in a different context of constitutional rights relating to detention and arrest.

Court relied upon the Supreme Court's 2026 judgment in Jaskaran Jeet Singh Deol v. State of Punjab, particularly its holding that where an arrest itself is unconstitutional and violates Article 22(1), subsequent orders of remand are also vitiated and later filing of a chargesheet or taking of cognisance cannot validate the unconstitutional arrest.

"This Court extends the same principal and holds that where the detention in police custody itself is violative of Art 21 and 22, the subsequent arrest, even where valid grounds of arrest are provided, and the remand proceedings before the Magistrate may otherwise appear legitimate, all stand vitiated by the application of the Fruit of the Poisonous Tree doctrine as actions subsequent to an illegal detention are also per se illegal and violative of Art 21 and 22 of the Constitution and that illegality perpetuates in all subsequent actions and proceedings," the bench said.

Illegal Detention

The court was dealing with a habeas corpus petition filed by one Ravi Chaurasiya and another raising the grievance of illegal detention by the police. Senior Advocate Imran Ullah and Advocates Vineet Vikram and Devesh Kumar Shukla appeared for the petitioner.

According to the petitioner, in relation to a case of purchasing property belonging to a gangster under the Gangsters Act, he was taken into police custody by officers of Police Station Soraon, Prayagraj, on September 14, 2026 at about 9 pm from Ayodhya. He was brought to Soraon police station the same day, but no arrest was shown.

On September 15, the petitioner's mother went to the police station to ascertain his whereabouts/wellbeing. The habeas corpus petition was filed before the high court on September 15 itself.

The following day, September 16, the police formally arrested the petitioner at 10.45 am, entered the arrest in the general diary, medically examined him and produced him before a Magistrate, who remanded him to judicial custody.

During the proceedings in the petition, the high court called for the police station's CCTV footage. However, the SHO of Soraon, who was also the Investigating Officer, made a candid admission in his counter-affidavit that the General Diary entry relating to bringing the petitioner to the police station had not been made.

The SHO described the omission as an “inadvertent mistake". Since the police had admitted the relevant lapse, court opined it was no longer necessary to examine the CCTV footage.

Court, however, found that the petitioner had effectively remained in police custody without a formal arrest or production before a Magistrate for more than 24 hours.

Court's observations

Court rejected the SHO's attempt to portray the failure to make the GD entry as simple negligence. It invoked the maxim “culpa lata dolo aequiparatur”, meaning that gross negligence is treated as equivalent to intentional wrongdoing.

Court reasoned that an experienced SHO/Investigating Officer could not reasonably have failed to record that a person had been brought to the police station and lodged in the lock-up.

Court therefore concluded that the omission was a conscious omission intended to avoid liability for illegal detention, particularly because the formal arrest came only after the police became aware of the habeas corpus petition.

Police have constitutional and legal duty to record custody

Court stressed that whenever a person is apprehended by police for investigation or interrogation, his custody must be reflected in the General Diary from the time he is taken into custody.

It specifically rejected the argument that police could simply “forget” to make such an entry for more than 24 hours.

Court held that the omission in this case was conscious and designed to escape the allegation of illegal detention.

Violation of Articles 21 and 22

Court held that since the petitioner had been kept in police custody beyond 24 hours without being produced before a Judicial Magistrate for remand, therefore, the initial detention was violative of his constitutional rights under Articles 21 and 22.

Section 38 of Bharatiya Nagarik Suraksha Sanhita (BNSS)

Court found that during the period of illegal detention, the petitioner was neither informed of his right to have a lawyer of his choice, nor he was provided the opportunity to have counsel present during investigation/interrogation.

Court said police cannot avoid the requirements of Section 38 BNSS [earlier Section 41D of Code of Criminal Procedure, 1973 (CrPC)] by not formally arresting a suspect, calling him to the police station, interrogating him and then subsequently treating him as an accused.

Section 38 BNSS provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

Court clarified that the police's duty under Section 38 arises even when a suspect is brought to the police station for interrogation before formal arrest. The suspect must be informed of his right to have counsel of his choice present during interrogation, although counsel need not be present throughout the interrogation.

Court's directions

Having held the petitioner's initial detention unlawful, the high court directed the petitioner's release forthwith, provided he was not wanted in any other case.

Court also awarded ₹30,000 compensation to the petitioner for the illegal detention, with the amount to be recovered from those responsible.

Moreover, court directed the Commissioner, Prayagraj to conduct an inquiry, fix responsibility and liability on those guilty of keeping the petitioner in illegal detention, and take appropriate action under law.

Apart from that, court recorded its displeasure with the conduct of the SHO, Police Station Soraon. If, after the inquiry, the Commissioner found negligence on the SHO's part, court directed that the displeasure recorded in the judgment be entered in his service record.

Future re-arrest subject to Supreme Court safeguards

Court also clarified that any prospective re-arrest would have to comply strictly with Jaskaran Jeet Singh Deol, including the requirement of a Magistrate-issued arrest warrant in the circumstances identified by that judgment.

Case title: Ravi Chaurasiya and Another v. State of U.P. and 4 Others

Order date: September 28, 2026

Bench: Justice Atul Sreedharan and Justice Achal Sachdev