IMPORTANT POINTS
(1) Bail – Filing of charge-sheet and cognizance of order cannot validate an unconstitutional arrest – Constitutional requirement of informing arrestee of grounds of arrest is mandatory.
(2) Dictum laid down in Mihir Rajesh Shah [2025 SCC Online SC 2356], that grounds of arrest must be communicated in writing to arrestee in language he or she understands, could operate only prospectively and cannot be applied to arrest made prior to date of Judgment.

ORDER

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking regular bail.

2. The applicant is the sole accused in Crime No.8/2025 of Thrissur Excise Range Office, Thrissur District. The offences alleged are punishable under Sections 22(b)(ii)(C) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’).

3. The prosecution case, in short, is that on 28.01.2025, the applicant was found in possession of 23.400 kilograms of Ganja in violation of the NDPS Act and thereby committed the above offences.

4. I have heard Sri.Sam Isaac Pothiyil, the learned counsel for the applicant and Sri.M.C.Ashi, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned counsel appearing for the applicant submitted that the requirement of informing the arrested person of the grounds of arrest is mandatory under Article 22(1) of the 2026:KER:7240 Constitution of India and Section 47 of the BNSS, and inasmuch as the applicant was not furnished with the grounds of arrest in the language known to him, his arrest was illegal and is liable to be released on bail. On the other hand, the learned Senior Public Prosecutor submitted that all legal formalities were complied with in accordance with Chapter V of the BNSS at the time of the arrest of the applicant. It is further submitted that the alleged incident occurred as part of the intentional criminal acts of the applicant and hence he is not entitled to bail at this stage.

6. The applicant was arrested on 28.01.2025, and since then, he has been in judicial custody.

7. Though prima facie there are materials on record to connect the applicant with the crime, since the applicant has raised a question of absence of communication of the grounds of his arrest, let me consider the same.

8. Chapter V of BNSS, 2023, deals with the arrest of persons. Sub-section (1) of Section 35 of BNSS lists cases when police may arrest a person without a warrant. Section 47 of BNSS clearly states that every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory statutory and constitutional requirement. Noncompliance with Article 22(1) of the Constitution will be a violation of the fundamental right of the accused guaranteed by the said Article. It will also amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution.

9. The question whether failure to communicate written grounds of arrest would render the arrest illegal, necessitating the release of the accused, is no longer res integra. The Supreme Court in Pankaj Bansal v. Union of India and Others [(2024) 7 SCC 576], while dealing with Section 19 of the Prevention of Money Laundering Act, 2002, has held that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. It was further held that a copy of the written grounds of arrest should be furnished to the arrested person as a matter of course and without exception. In Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], while dealing with the offences under the Unlawful Activities Prevention Act, 1967 (for short, ‘UAPA’), it was held that any person arrested for an allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest has to be furnished to the arrested person as a m