Failure to communicate grounds for arrest mandates bail under Article 22(1) of the Constitution.

ORDER

This bail application is filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).

2. Petitioner is the accused in Crime No.76 of 2023 of the Excise Enforcement and Anti-Narcotic Special Squad, Palakkad, registered for the offences punishable under Sections 20 (b)(ii)(C), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for brevity, ‘NDPS Act’].

3. According to the prosecution, on 25.11.2023 at about 1.45 p.m. the accused was found in possession of 43.100 Kg. of ganja and thereby committed the offences alleged. Petitioner was arrested on 25.11.2023 and he has been in custody since then.

4. Heard Adv.Sayed Mansoor Bafakhy Thangal, the learned Counsel for the petitioner as well as Sri.Noushad K.A., the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that the petitioner has been in custody since 25.11.2023. It was submitted that the grounds for arrest were not communicated to the petitioner or his relatives at the time of his arrest.

6. The learned Public Prosecutor opposed the bail application and submitted that the grounds for arrest were communicated to the petitioner at the time of his arrest. It was also submitted that since the contraband seized from the petitioner was a commercial quantity, the rigour under Section 37 of NDPS Act will apply and hence petitioner ought not to be released on bail.

7. Though prima facie there are materials on record to connect the petitioner with the crime, since petitioner has raised the question of absence of communication of the grounds for his arrest, this Court is obliged to consider the said issue.

8. In the decisions in Pankaj Bansal v. Union of India and Others , [(2024) 7 SCC 576],Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254] andVihaan Kumar v. State of Haryana [AIR 2025 SC 1388] , it has been held that the requirement of informing a person of grounds for arrest is a mandatory requirement of Article 22(1) and also that the information of the grounds for arrest must be provided to the arrested person in such a manner that sufÏcient knowledge of the basic facts confuting the grounds imparted and communicate to the arrested person effectively in the language which he understands.

9. In a recent decision in Shahina v. State of Kerala [2025 KHC Online 706] , this Court has also considered the impact of the aforesaid principles in relation to offences alleged under the NDPS Act and held that the grounds for arrest must be communicated.

10. On a perusal of the case diary, it is noticed that neither in the arrest intimation nor in the arrest memo is there anything to indicate that the grounds for arrest were communicated to the petitioner. In fact the learned Sessions Judge had observed that the grounds for arrest seems to have been communicated to the petitioner on the basis of notice under Section 50 of the NDPS Act, which pertains to search of the accused. The said notice cannot be treated as a communication of the grounds for arrest as contemplated in the decisions mentioned above. In such circumstances, I am satisfied that petitioner has not been communicated with the grounds for arrest.

11. Petitioner has been in custody from 25.11.2023 onwards. Since the grounds for arrest were not communicated to the petitioner soon after the arrest, petitioner is entitled to be released on bail.

In the result, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitio