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IN THE HIGH COURT OF KERALA AT ERNAKULAM
DR. KAUSER EDAPPAGATH, J
AYESHA GAFFAR SAYED – Appellant
Versus
STATE OF KERALA – Respondent
BAIL APPL. NO. 13007 OF 2025 | CRIME NO.33/2025
Certainly. Based on the provided legal document, the key points are as follows:
The arrest of the applicant was deemed illegal because the grounds of arrest were not communicated to her at the time of arrest, which is a mandatory constitutional and statutory requirement (!) (!) (!) (!) .
The failure to communicate the grounds of arrest violates the rights guaranteed under Article 22(1) of the Constitution and Section 47 of the relevant law, rendering the arrest and subsequent remand invalid (!) (!) .
The court emphasizes that the requirement of informing the arrested person of the grounds of arrest is not a mere formality but a fundamental right, and non-compliance results in the arrest being unlawful unless there is substantial compliance or demonstrable prejudice (!) (!) (!) .
In cases where immediate written communication of grounds is not possible, oral communication followed by written confirmation within a reasonable time (preferably at least two hours prior to remand proceedings) is sufficient (!) (!) .
For NDPS cases, specifically, the quantity of contraband must be explicitly mentioned to ensure proper communication of grounds of arrest (!) .
Since the arrest memo only contained the provisions of law without the specific grounds of arrest, the court found that the constitutional and statutory requirements were not satisfied, making the arrest and subsequent remand illegal (!) (!) .
As a result, the court ordered the release of the applicant on bail, subject to conditions including executing a bond, cooperating with investigation, appearing for inquiries, not tampering with evidence or witnesses, and not leaving Kerala without permission (!) (!) (!) (!) (!) (!) (!) .
The court clarified that any application for modification or cancellation of bail conditions should be filed before the appropriate court (!) .
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| Table of Content |
|---|
| 1. conditions of bail outlined. (Para 1) |
| 2. application for bail under bnss. (Para 2) |
| 3. allegations of possession of narcotic substances. (Para 3 , 4 , 6) |
| 4. right to be informed of grounds of arrest asserted. (Para 5 , 11) |
| 5. mandatory constitutional and statutory requirements established. (Para 8 , 9 , 10 , 13) |
| 6. conclusions regarding illegality of the arrest. (Para 12 , 14) |
O R D E R
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 accused No.2 in Crime No.33/2025 of Mattancherry Police Station, Ernakulam District. The offences alleged are punishable under Sections 8 (c), 22(c), 20(b)(ii)(A), 23(c), 27A & 29(1) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short, 'the NDPS Act') and Section 111 (1) of the Indian Penal Code , 1860.
3. The prosecution case, in short, is that accused were found in possession of 298.06 grams of MDMA apart from 6.800 grams of dried ganja on 31.01.2025 and thereby committed the offences.
4. I have heard Sri.B.S.Suresh Kumar, the learned counsel for the applicant and Sri.U.Jayakrishnan, the learned 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 Constitution of India and Section 47 of the BNSS and inasmuch as the applicant was not furnished with the grounds of arrest, his arrest was illegal and is liable to be released on bail. On the other hand, the learned Public Prosecutor submitted that all legal formalities were complied with in accordance with Chapter V of the 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 she is not entitled to bail at this stage.
6. The applicant was arrested on 30.01.2025 and since then she is 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 lists cases when police may arrest a person without a warrant. Section 47 of 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 inPankaj 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 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
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