Kerala High Court Grants Bail in NDPS Case, Citing Failure to Communicate Grounds for Arrest

ERNAKULAM: The Kerala High Court, in a significant ruling, has granted bail to an individual accused of possessing a commercial quantity of ganja, emphasizing that the failure to communicate the grounds for arrest is a violation of fundamental rights that cannot be overlooked, even in serious offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

The single-judge bench of Justice Bechu Kurian Thomas allowed the bail application of Noushad, who has been in custody since November 25, 2023, after being arrested with 43.100 kg of ganja.

Case Background

The petitioner, Noushad, was arrested by the Excise Enforcement and Anti-Narcotic Special Squad in Palakkad on November 25, 2023. He was booked under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act for allegedly possessing a commercial quantity of ganja. Since his arrest, he has remained in judicial custody.

The bail application was filed before the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Arguments Presented

The counsel for the petitioner, Adv. Sayed Mansoor Bafakhy Thangal, argued that Noushad's continued detention was illegal as the grounds for his arrest were never communicated to him or his relatives, a mandatory procedural safeguard.

The learned Public Prosecutor, Sri. Noushad K.A., strongly opposed the bail plea. He contended that the seizure of a commercial quantity of narcotics automatically invokes the stringent conditions for bail under Section 37 of the NDPS Act. The prosecution asserted that the grounds for arrest were indeed communicated to the petitioner at the time of the arrest.

Court's Analysis and Precedents

Justice Thomas acknowledged that while there was prima facie material connecting the petitioner to the crime, the court was obligated to examine the crucial question of whether the grounds for arrest were communicated.

The Court relied on a series of landmark Supreme Court judgments, including Pankaj Bansal v. Union of India , Prabir Purkayastha v. State (NCT of Delhi) , and Vihaan Kumar v. State of Haryana . These decisions have unequivocally established that informing an individual of the grounds for their arrest is a mandatory requirement under Article 22(1) of the Constitution. The communication must be effective, in a language the arrested person understands, and provide sufficient knowledge of the facts constituting the grounds.

The judgment also referenced a recent decision of the Kerala High Court itself in Shahina v. State of Kerala , which applied these constitutional principles to cases under the NDPS Act.

Pivotal Findings from the Judgment

Upon scrutinizing the case diary, the Court made a critical observation. Justice Thomas noted:

"On a perusal of the case diary, it is noticed that neither in the arrest intimation nor in the arrest memo is there anything to indicate that the grounds for arrest were communicated to the petitioner."

The Court rejected the Sessions Judge's earlier reasoning that a notice under Section 50 of the NDPS Act (related to the right to be searched before a Gazetted Officer or a Magistrate) could be considered as communication of the grounds for arrest. The High Court clarified that a Section 50 notice serves a different purpose and cannot substitute the constitutional mandate.

"The said notice cannot be treated as a communication of the grounds for arrest as contemplated in the decisions mentioned above. In such circumstances, I am satisfied that petitioner has not been communicated with the grounds for arrest," the Court held.

Final Decision and Implications

Concluding that the petitioner's fundamental right had been violated due to the non-communication of the grounds for his arrest, the High Court ruled that he was entitled to be released on bail.

The Court allowed the bail application, directing Noushad's release upon executing a bond of Rs. 1,00,000/- with two solvent sureties. The bail is subject to several conditions, including cooperating with the trial, not influencing witnesses, not committing similar offences, and not leaving the state of Kerala without the court's permission.

This judgment reinforces the primacy of constitutional safeguards in criminal procedure, affirming that even in cases involving stringent laws like the NDPS Act, procedural lapses that infringe upon an accused's fundamental rights can be a valid ground for granting bail.