Mandatory communication of arrest grounds to near relatives under Article 22(1) is essential; failure to communicate to them, even if communicated to the arrestee, invalidates the arrest and makes continued custody unlawful.

ORDER

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

2. Petitioner is the second accused in Crime No.1053 of 2025 of Kalamassery Police Station, Ernakulam, registered for the offences punishable under Sections 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’).

3. According to the prosecution, on 12.08.2025, the Sub Inspector of Police, DANSAF, Ernakulam City received information regarding the contraband kept for sale and reached the rented house of the petitioner and recovered 5.550 grams of MDMA from the first accused and 4.990 grams of MDMA from the pocket of the 2^nd accused and thereby the accused committed the offences alleged. Petitioner was arrested on 12.08.2025 and he has been in custody since then.

4. The learned counsel for the petitioner submitted that the petitioner has been in custody since 12.08.2025 and that the grounds for arrest were not communicated at the time of his arrest.

5. 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.

6. 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.

7. 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] and Vihaan Kumar v. State of Haryana and Another [2025 SCC Online SC 269], 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 sufficient knowledge of the basic facts constituting the grounds must be communicated to the arrested person effectively in the language which he understands.

8. In a recent decision in Shahina vs. State of Kerala [2025 KHC OnLine 706] this Court had 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.

9. In the instant case, on a perusal of the records of investigation, it is noticed that though the grounds for arrest have been communicated to the arrestee, there is no reference to the grounds for arrest in the intimation given to the near relatives.

10. It is worthwhile to reproduce the observation of the Supreme Court in paragraph 18(h) of the judgment in Khasi Reddy Upendra Reddy v. State of Andra Pradesh [2025 INSC 768] which reads as follows :-

“18(h)-The grounds of arrest should not only be provided to the arrestee but also to his family members and relatives so that necessary arrangements are made to secure the release of the person arrested at the earliest possible opportunity so as to make the mandate of Article 22(1) meaningful and effective, failing which, such arrest may be rendered illegal”.

11. Considering that the observations in Supreme Court decision referred to above as well as the order of this Court in Shahina's case (supra) specifically stated that the grounds for arrest must be communicated not only to the arrestee, but also to the near relatives, and the latter having not been complied with, the arrest of the petitioner stands vitiated. Accordingly, petitioner's continued custody is illegal and hence peti