Failure to Communicate 'Grounds for Arrest' Vitiates Custody, Trumps S.37 NDPS Act Rigours: Kerala High Court - 2025-07-06

Failure to Inform Grounds of Arrest is a Constitutional Breach, Warrants Bail in NDPS Cases: Kerala High Court

KOCHI: In a significant ruling clarifying the interplay between fundamental rights and stringent anti-drug laws, the Kerala High Court has held that the failure to effectively communicate the "grounds for arrest" to an accused is a violation of Article 22(1) of the Constitution, rendering the arrest illegal and justifying the grant of bail, even in cases involving commercial quantities of narcotics under the NDPS Act.

Justice Bechu KurianThomas , while deciding a batch of nine bail applications, granted relief to seven accused persons after finding that the investigating agencies had failed to prove compliance with this mandatory constitutional safeguard. The court dismissed the bail pleas of two other accused where the records demonstrated that the grounds for arrest had been properly communicated.

---

Background of the Case

The High Court was hearing a cluster of bail pleas from nine individuals accused in separate cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. All cases involved the alleged possession of commercial quantities of drugs like MDMA, methamphetamine, and ganja. The petitioners universally argued that their arrests were unlawful due to the non-communication of the specific grounds for their detention, a right guaranteed under the Constitution.

The State, represented by the Public Prosecutor, vehemently opposed the pleas, citing the stringent twin conditions for bail under Section 37 of the NDPS Act, which apply to commercial quantity seizures. The prosecution maintained that the grounds for arrest were properly communicated in each case.

---

Court's Legal Analysis

Justice Thomas framed two primary legal questions for consideration: 1. Does a long period of pre-trial custody override the strict bail conditions of Section 37 of the NDPS Act? 2. Was the constitutional mandate to communicate the "grounds for arrest" complied with?

On Prolonged Detention vs. Section 37 of the NDPS Act

The court analyzed conflicting Supreme Court precedents. While acknowledging a recent two-judge bench ruling in Ankur Chaudhary (2024) which suggested that prolonged incarceration could be a ground for bail, it ultimately followed the binding precedent set by a larger three-judge bench in Narcotics Control Bureau v. Mohit Aggarwal (2022) .

The court noted, "The decision in Mohit Aggarwal (supra) was rendered by a Bench of three Judges and hence the said decision is binding... Thus the period of custody has no bearing in the matter of bail in a case involving commercial quantities of drugs under the NDPS Act."

On the Right to be Informed of Grounds for Arrest

This became the dispositive issue. Justice Thomas embarked on a detailed examination of Article 22(1) of the Constitution and Section 52(1) of the NDPS Act, which make it mandatory to inform an arrested person of the grounds for their arrest.

Citing the landmark Supreme Court decision in Pankaj Bansal vs. Union of India (2024) , the court distinguished between "reasons for arrest" (general parameters like preventing further crime) and "grounds for arrest," which must contain specific, personal facts that necessitated the arrest.

The judgment then reconciled two apparently divergent Supreme Court views on whether these grounds must be in writing. While Pankaj Bansal suggested furnishing written grounds was necessary, the subsequent decision in Vihaan Kumar vs. State of Haryana (2025) clarified that this was an advisable suggestion, not a mandatory requirement, as long as the grounds were effectively communicated.

Following the principle that a subsequent bench's clarification is binding, Justice Thomas culled out ten key principles, including: - Informing the grounds of arrest is a mandatory, non-negotiable constitutional requirement. - The burden of proof for compliance lies with the investigating agency. - Non-compliance vitiates the arrest and is a ground for bail, even overcoming the rigours of Section 37 of the NDPS Act. - A vague reference in a seizure mahazar or merely citing the provision of law in an arrest memo is insufficient.

"When a violation of Article 22(1) is established, it is a duty of the court to forthwith order release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

---

The Final Verdict: A Case-by-Case Examination

Applying these principles, the court meticulously examined the records of each of the nine cases.

• Bail Granted (7 Cases): In the cases of Shahina , Snehith , Afzal Shajahan, Praseetha B., Nizamudheen P.P., Nazrudheen, and Achintha Mondal , the court found the prosecution's records wanting. It observed that "there is nothing to indicate that the grounds for arrest have been communicated" or that vague references in documents were insufficient to prove effective communication. Their arrests were declared illegal, and they were ordered to be released on bail.

• Bail Dismissed (2 Cases): In the cases of Muhammed Rufine and Muhammed Jashir , the court found sufficient compliance. The arrest memo and other contemporaneous records clearly stated that they were arrested for "possession of prohibited narcotic drugs" or "illegal possession of MDMA," and the documents bore their signatures, indicating communication. Furthermore, there was evidence of intimation to their relatives. Their bail applications were consequently dismissed.

The seven petitioners granted bail were directed to execute a bond of ₹1,00,000 with two solvent sureties and are subject to conditions including not leaving the state without permission.