Back
2025 Supreme(Online)(Ker) 42927
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J
ABDUL SALAM HUSSAIN – Appellant
Versus
STATE OF KERALA – Respondent
BAIL APPL. NO. 11803 OF 2025 | CRIME NO.1441/2023
For the Appellants/Petitioners: P.MOHAMED SABAH, LIBIN STANLEY, SAIPOOJA, SADIK ISMAYIL, R.GAYATHRI, M.MAHIN HAMZA, ALWIN JOSEPH, BENSON AMBROSE
For the Respondents: PRASANTH M P
Failure to communicate grounds for arrest renders the detention invalid, establishing the right to be informed under Article 22(1).
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 483 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(c) - Bail application for a sole accused in possession of contraband - Required grounds for arrest not communicated at the time of arrest - The arrest is therefore vitiated, and the petitioner is entitled to bail. (Paras 10, 11)
(B) Right to be informed of grounds for arrest - Mandatory requirement under Article 22(1) must be effectively communicated to the arrested person in an understandable manner. (Paras 8, 9)
Facts of the case:
The petitioner was arrested for possession of MDMA without proper communication of grounds for arrest, raising issues of procedural fairness.
Findings of Court:
Grounds for arrest were not communicated, hence the petitioner is eligible for bail.
Issues: Whether the failure to communicate the grounds of arrest renders the arrest vitiated?
Ratio Decidendi: The court emphasized the necessity of informing the accused of the grounds for arrest as a safeguard of personal liberty, leading to the conclusion that his detention was invalid due to failure in this respect.
Result: Bail application allowed.
| Table of Content |
|---|
| 1. petitioner’s custody details and allegations. (Para 2 , 4) |
| 2. requirement of informing grounds for arrest. (Para 8 , 9) |
| 3. violation of procedural rights. (Para 10) |
| 4. court's decision on bail eligibility. (Para 11) |
ORDER
This bail application is filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).
2. Petitioner is the sole accused in Crime No.1441 of 2023 of Elamakkara Police Station, Ernakulam, which is now pending as S.C.No.278 of 2024 on the files of the First Additional Sessions Court, Ernakulam, registered for the offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for brevity, ‘NDPS Act’].
3. According to the prosecution, on 05.09.2023 at about
6.50 p.m., accused was found in possession of 69.12 grams of MDMA and thereby committed the offences alleged. Petitioner was arrested on 05.09.2023 and he has been in custody since then.
4. Heard Adv.P.Mohamed Sabah, the learned Counsel for the petitioner as well as Sri.Prasanth M.P., the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that the petitioner has been in custody since 05.09.2023. 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 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 grounds for arrest have not been communicated to the petitioner as there is no mention in the arrest memo regarding the same, while, the arrest intimation given to the near relative of the petitioner contains only a reference to the provisions of law. In view of the failure to provide intimation of arrest or the grounds for arrest to the relatives of the petitioner, I am satisfied that petitioner has not been communicated with the grounds for arrest.
In such circumstances, petitioner’s arrest is vitiated.
11. Petitioner has been in custody from 05.09.2023 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) Petitioner shall co-operate with the trial of the case.
(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the
