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2025 Supreme(Online)(Mad) 67428
IN THE HIGH COURT OF JUDICATURE AT MADRAS
SUNDER MOHAN, J
Bava Bagurudeen @ Bagurudeen – Appellant
Versus
The State of Tamil Nadu – Respondent
Crl.O.P.(MD) Nos.10345 & 10346 of 2025
For the Appellants/Petitioners: Mr.S.Karthikeyan for Mr.K.Subburaj
For the Respondents: Mr.R.Meenakshi Sundaram Additional Public Prosecutor
The mandatory requirement to communicate the grounds of arrest in writing arises from constitutional safeguards under Article 22 of the Constitution, impacting the legality of subsequent remand orders.
Headnote:(A) Bharathiya Nagarik Suraksha Sanhita, 2023 - Sections 528 and provisions relating to arrest under Article 22 of the Constitution of India - Petitioners challenged the remand orders passed without due communication of grounds of arrest; the Court reiterated that these grounds must be communicated in writing under Article 22(1) as part of fundamental rights to personal liberty. (Paras 4, 10, 11)
(B) Constitutional Rights - Grounds of arrest - The obligation to inform the arrested person of the grounds of arrest is not merely procedural but a constitutional safeguard essential for ensuring the right to defend oneself effectively. (Paras 33, 38, 40)
(C) Arrest and Remand - The legality of the remand order concerning failure to provide written grounds of arrest must be addressed specific to each petitioner. The first two petitioners were caught red-handed and thus initial non-communication did not impact the remand, while the third petitioner was wrongly remanded due to the failure of communication of grounds. (Paras 2, 9, 12, 14)
Facts of the case:
The petitioners sought to set aside remand orders stemming from arrests made under the NDPS Act for allegedly smuggling ganja, with varying grounds of challenge based on communication of those grounds.
Findings of Court:
The remand of one petitioner was set aside due to non-communication of the grounds of arrest, while the others were deemed lawful; specific adherence to timeline in communication was emphasized.
Issues: The critical question was the impact of non-communication of grounds of arrest on the legality of the remand orders.
Ratio Decidendi: The court emphasized that while the grounds must be communicated without delay, the nature of the arrests impacts the timing of this communication, distinguishing the petitioners’ experiences with respect to due process rights.
Result: One petition granted, the other dismissed.
| Table of Content |
|---|
| 1. nature of the criminal allegations against the petitioners. (Para 1 , 2 , 3) |
| 2. violation of fundamental rights under articles 22(1) and 22(5). (Para 4 , 10) |
| 3. details of the arrest and compliance with legal procedures. (Para 5 , 6) |
| 4. mandatory nature of communication of grounds of arrest. (Para 7 , 8 , 11) |
| 5. differentiation in remand legality for a1, a2, and a3 based on grounds of arrest. (Para 12 , 13 , 14) |
| 6. outcome and disposal of the petitions. (Para 15) |
COMMON ORDER
These Criminal Original Petitions have been filed seeking to set aside the orders of remand passed by the learned Judicial Magistrate, Manamelkudi, against the petitioners in Crime No.2 of 2025 [renumbered as Crime No.7 of 2025, on the file of NIB-CID, Sivagangai] dated 10.01.2025 and 12.01.2025, respectively.
2. The petitioner in Crl.O.P.(MD) No.10345 of 2025 is the third accused, and the petitioners in Crl.O.P.(MD) No.10346 of 2025 are the first and second accused in Crime No.2 of 2025, registered for the offences punishable under Sections 8(c), 20(b)(ii)(C), 25, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. The allegation in the FIR is that, on receipt of secret information that certain persons were attempting to illegally smuggle ganja to Sri Lanka, the respondent and the search party proceeded to the seashore and intercepted a container lorry on 10.01.2025 at about 5.45 a.m.; that when the persons inside the lorry, viz., the petitioners in Crl.O.P.(MD) No. 10346 of 2025/A1 and A2, gave evasive replies, and when the police party informed them about the search, they raised no objection to the search being conducted by the police party; that upon search of the lorry, 12 white sacks containing 170 bundles were found; that it was found that each bundle contained 2 kgs of ganja; and that when the police party enquired the petitioners in Crl.O.P.(MD) No.10346 of 2025, they stated that the contraband was meant to be handed over to one Bava Bagurudeen @ Bagurudeen, who is the petitioner in Crl.O.P.(MD) No.10345 of 2025/A3, and that he would, in turn, smuggle it to Sri Lanka.
4. The learned counsel for the petitioners would submit that the petitioners' remand is in violation of their fundamental rights under Articles 22(1) and 22(5) of the Constitution of India, inasmuch as the petitioners were not communicated the grounds of arrest in writing; that the arrest memo is not sufficient compliance with the requirement to communicate the grounds of arrest in writing; and that the grounds of arrest are different from the reasons for arrest mentioned in the arrest memo, and relied upon the judgment of the Hon'ble Supreme Court in Vihaan Kumar vs. State of Haryana and another, Neutral Citation: 2025 INSC 162, and the recent judgment of the Hon'ble Supreme Court in Mihir Rajesh Shah vs. State of Maharashtra and another, Neutral Citation: 2025 INSC 1288.
5. It is seen that the petitioners in Crl.O.P.(MD) No.10346 of 2025 were arrested along with the contraband on 10.01.2025, and the petitioner in Crl.O.P.(MD) No.10345 of 2025 was arrested on 12.01.2025 at about 6.00 a.m.
6. The respondent has filed a counter affidavit stating that the case was registered by the respondent, Inspector of Police, Jegathapatinam Police Station, in Crime No.2 of 2025, and the arrest was also effected by the police officials attached to the said police station; that later, the case was transferred to the NIB-CID, Sivagangai, and renumbered as Crime No.7 of 2025; that the final report has also been filed and taken on file as C.C.No.186 of 2025 on the file of the II Additional District and Sessions Court-cum-Special Court for EC and NDPS Act Cases, Pudukottai; that A1 and A2, the petitioners in Crl.O.P.(MD) No.10346 of 2025, were arrested on 10.01.2025, and A3, the petitioner in Crl.O.P.(MD) No.10345 of 2025, was arrested on 12.01.2025; that the reasons for their arrest were duly explained to them as mandated under Section 52 of the NDPS Act; that intimation of t
