Back
2026 Supreme(Online)(Ker) 44203
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J
Shahul Hameed A. – Appellant
Versus
State of Kerala – Respondent
BAIL APPL. NO. 3478 OF 2026 | CRIME NO.281/2026
For the Appellants/Petitioners: Sam Isaac Pothiyil, S. Suraja, Muhammed Suhair C., Sindura Sreenivasan, Bineetha Thomas, Chanchal Seraphine
For the Respondents: Aneeda Beegum
In NDPS cases, communicating the quantity of contraband is mandatory for effective communication of arrest grounds under Art. 22(1) of the Constitution and BNSS; failure to do so renders the arrest illegal.
Headnote:The applicant, accused of possessing 108.28 grams of MDMA under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, sought regular bail challenging the legality of the arrest. The applicant contended that the mandatory requirement of informing the arrested person of the grounds of arrest, as prescribed under Article 22(1) of the Constitution of India and Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, was not met. The primary issue was whether the failure to communicate the specific quantity of contraband seized in an NDPS case constitutes a violation of the fundamental and statutory right to be informed of the grounds of arrest. The court reasoned that the specification of quantity is mandatory because it determines whether the offence is bailable or non-bailable. Based on precedents, the court held that non-compliance with these requirements renders the arrest and subsequent remand illegal, and the burden lies with the police to prove compliance. In the result, the application is allowed on the following conditions: (i) The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.
| Table of Content |
|---|
| 1. procedural history and facts of the mdma possession case. (Para 1 , 2 , 3 , 6) |
| 2. contention regarding non-communication of grounds of arrest. (Para 4 , 5) |
| 3. constitutional and statutory mandate for communicating arrest grounds. (Para 7 , 8) |
| 4. analysis of supreme court and high court precedents on written grounds of arrest. (Para 9 , 10 , 11 , 12) |
| 5. established legal principles for validity of arrest and remand. (Para 13) |
| 6. ruling that failure to specify contraband quantity renders arrest illegal. (Para 14) |
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.281/2026 of Chevayoor Police Station, Kozhikode District. The offence alleged is punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act).
3. The prosecution case, in short, is that on 21.04.2026 at about 22:30 hours, the applicant and the other accused in the crime were found in possession of 108.28 grams of MDMA at Tokyo Lodge, Kozhikode and thereby committed the above offence.
4. I have heard Sri.Sam Isaac Pothiyil, the learned counsel for the applicant and Smt. Aneeda Beegum, 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 BNSS 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 21.04.2026 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 BNSS lists cases when police may arrest a person without a warrant. Section 47 of BNSS 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 in Pankaj 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 Pur
