Mandatory communication of arrest grounds under Article 22(1); absence vitiates arrest and entitles bail where NDPS offences involve a commercial quantity.

ORDER

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

2. Petitioners are accused 1 and 2 in Crime No.113 of

2025 of Ernakulam Railway Police Station, registered for the offences punishable under Sections 20 (b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act , 1985 [for brevity, ‘NDPS Act’].

3. According to the prosecution, during an inspection at Ernakulam South Railway Station, the SI of Ernakulam Railway Police Station recovered 15.472 kg of ganja from the bag of the first accused and 12.489 kg from the bag of the second accused and thereby the accused committed the offences alleged. Petitioners were arrested on 11.03.2025 and they have been in custody since then.

4. Heard Adv.V.S.Salim, the learned Counsel for the petitioner as well as Sri.Prasanth M.P., the learned Public Prosecutor.

5. The learned counsel for the petitioners submitted that the petitioners have been in custody since 11.03.2025. It was submitted that the grounds for arrest were not communicated to the petitioners or their relatives at the time of their arrest. 6. The learned Public Prosecutor opposed the bail application and submitted that the grounds for arrest were communicated to the petitioners at the time of their arrest. It was also submitted that since the contraband seized from the petitioners was a commercial quantity, the rigour under Section 37 of NDPS Act will apply and hence petitioners ought not to be released on bail.

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

8. In the decisions inPankaj 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 said information must be provided to the arrested person in such a manner that sufÏcient knowledge of the basic facts constituting the grounds must be communicated 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 the arrest memo does not contain the grounds for arrest, except for a reference to the provisions of law. Similarly, it is seen that though the petitioners’ relatives and the Legal Aid Counsel were informed over phone, there is nothing to indicate that the grounds for arrest were communicated to the petitioner or the relatives. In such circumstances, I am satisfied that petitioners were not communicated with the grounds for arrest. In such circumstances, petitioners’ arrest being vitiated, they are liable to be released.

11. Petitioners have been in custody from 11.03.2025 onwards. Since the grounds for arrest were not communicated to the petitioners soon after the arrest, petitioners are entitled to be released on bail.

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

(a) Petitioners shall be released on bail on each of them 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) Petitioners shall co-operate with the trial of the case.

(c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall they attempt to tamper with th