Arrest Illegal For Failure To Inform Grounds To Arrestee Promptly: Kerala High Court
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice K. Babu directed the release on bail of three accused, after finding that the police had not effectively communicated the grounds of arrest and arrest intimation as required under Article 22(1) of the Constitution and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which rendered the arrests unlawful and entitled the accused to be released on bail. The bail pleas arose from allegations under the NDPS Act involving possession, transportation or supply of narcotic and psychotropic substances, including methamphetamine, MDMA, LSD and ganja. In the remaining case, bail was refused after the Court accepted that specific grounds and reasons were communicated to the accused and a close relative, while imposing standard conditions on those released.
These connected bail applications arose from four separate prosecutions under the Narcotic Drugs and Psychotropic Substances Act, in which the accused challenged the legality of their arrest and remand. The common issue raised was the alleged violation of constitutional and statutory safeguards under Article 22(1) of the Constitution of India and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023, relating to communication of the grounds of arrest and intimation to relatives or friends. The petitioners contended that they were either not informed of the specific grounds of arrest or that no proper arrest intimation was given to their near relatives.
The prosecution opposed the bail pleas by asserting substantial compliance with the statutory requirements and argued that written communication of grounds of arrest was not mandatory in every case. Reliance was placed on judicial precedents to contend that the absence of written grounds would not automatically vitiate the arrest unless prejudice was demonstrated.
Each bail application was examined on its own factual footing with reference to the arrest records, arrest intimation, case diary, and materials produced by the prosecution. The Court assessed whether the constitutional mandate and statutory obligations had been complied with at the time of arrest and whether any violation rendered the arrest and subsequent remand illegal, warranting release on bail.
The Court traced the jurisprudential foundation of personal liberty to constitutional protections and recorded that “the liberty of being informed the grounds of arrest to a person generated from the constitutional safeguard provided under Article 21 of the Constitution.” It observed “If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If a person is not informed of the grounds of arrest as soon as may be, it would amount to violation of fundamental right rendering the arrest illegal.”
The Court noted that “mere information of arrest will not amount to furnishing grounds of arrest,” and clarified that the arrest memo and the grounds of arrest are distinct. It recorded that the grounds of arrest must exist prior to arrest and there must be a contemporaneous record showing what those grounds were. Referring to Supreme Court precedents, the Court stated that “once a violation of Article 22(1) is established, the arrest itself is vitiated and continued custody based on orders of remand is also vitiated.”
On the burden of proof, the Court observed that when an arrestee alleges non-communication of grounds of arrest, “the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made.” The Court further recorded that statutory rigours applicable to NDPS offences do not curtail the power of the Court to grant bail when violations of Articles 21 and 22 are established.
Applying these principles, the Court examined each case. In two matters, it found that the arrest intimation conveyed only penal provisions and not the specific allegations or quantity of contraband, holding that “the requirement of Article 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS have not been satisfied.” In another case, the Court recorded that no arrest intimation was communicated to the near relative, rendering the arrest illegal. Conversely, in one case, the Court was satisfied that the grounds and reasons of arrest were duly communicated to both the accused and a near relative and therefore declined bail.
The Court ordered that “B.A.Nos.12287, 12289 and 12376 of 2025 are allowed” and the petitioners therein “shall be released on bail on their executing bond for Rs.5,00,000/- (Rupees Five Lakhs only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.”
“The petitioners shall cooperate with the trial,” and clarified that “the petitioners shall not threaten or attempt to influence any witnesses. The petitioners shall not commit any similar offence, while on bail.”
“The petitioners shall not leave the State of Kerala without the permission of the jurisdictional Court. The petitioners shall surrender their passport before the jurisdictional Court,” and clarified that “if the petitioners do not possess passport, they shall file affidavits to that effect.”
“If any of the bail conditions are violated by the petitioners, the jurisdictional Court shall be at liberty to cancel the bail, in accordance with law, notwithstanding the fact that this Court granted bail to the petitioners. B.A.No.12603 of 2025 is dismissed.”
Advocates Representing the Parties
For the Petitioners: Sri. P. Mohamed Sabah, Sri. Libin Stanley, Smt. Saipooja, Sri. Sadik Ismayil, Smt. R. Gayathri, Sri. M. Mahin Hamza, Sri. Alwin Joseph, Sri. Benson Ambrose; Sri. Nireesh Mathew, Sri. Vivek Venugopal, Sri. Babu Jose, Sri. Gajendra Singh Rajpurohit, Sri. Akhil George, Sri. Athul Poulose; Sri. S.K. Adhithyan, Sri. Reuben Charly, Smt. Shahina Noushad, Sri. Krishna S. Karunakaran.
For the Respondents: Sri. M.C. Ashi, Senior Public Prosecutor; Sri. G. Sudheer, Public Prosecutor; Smt. M.K. Pushpalatha, Senior Public Prosecutor.
Case Title: Vishnu N.P. & Ors. v. State of Kerala & Ors.
Neutral Citation: 2025: KER:91583
Case Numbers: B.A.Nos.12287, 12289, 12376 & 12603 of 2025
Bench: Justice K. Babu
