Failure to communicate grounds of arrest violates fundamental rights, but compliance with statutory requirements validates arrest.

ORDER

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.74/2022 of Excise Enforcement and Anti-Narcotic Special Squad, Ernakulam. The offences alleged are punishable under Sections 22 (c) and 20(b)(2)(a) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS' Act').

3. The prosecution case, in short, is that on

14.10.2022 at about 02.30 a.m. the detecting officer had seized 2.3485 gms of LSD Stamp (115 nos) and 77 gms of Hashish Oil from the house bearing No.22/1493, Balayil Veedu, Mundamveli, Boundary Desom, Palluruthy, Kochi, the house owned by the accused No.1 and he was arrested. But on investigation, it was revealed that the son of the accused No.1 who is the accused No.2 herein is the kingpin of this narcotic deal. Thereby he was arraigned as the accused No.2 and he was arrested on 26.12.2024.

4. I have heard Sri.S.Rajeev, the learned counsel for the applicant and Sri.M.C.Ashi, the learned Senior 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 Senior 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 he is not entitled to bail at this stage.

6. The applicant was arrested on 26.12.2024 and since then he 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. InPrabir Purkay