Seized Contraband Quantity Must Be Disclosed For Effective Communication Of Arrest Grounds In NDPS Cases: Kerala High Court
Isabella Mariam
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath dismissed a regular bail plea filed by an NDPS accused, finding no illegality in the arrest on the ground that the reasons for arrest were communicated at the time of apprehension. The prosecution alleged that excise officials seized 23.400 kg of ganja from the accused’s possession. In doing so, the Court stated that, in NDPS cases, effective communication of arrest grounds requires disclosing the quantity of contraband seized.
The applicant contended that his arrest was illegal on the ground that the grounds of arrest were not communicated to him in the language known to him, in violation of Article 22(1) of the Constitution of India and Section 47 of the BNSS. It was argued that such non-communication vitiated the arrest and entitled him to bail.
The State opposed the application, submitting that all legal formalities under Chapter V of the BNSS were complied with at the time of arrest. It was contended that the grounds of arrest were communicated to the accused and that intimation was also given to his relative, rendering the arrest lawful.
The Court examined the constitutional and statutory framework governing arrest. It observed that “the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory statutory and constitutional requirement.” It further stated that “noncompliance with Article 22(1) of the Constitution will be a violation of the fundamental right of the accused” and would also infringe the right to personal liberty under Article 21.
While dealing with the consequences of non-communication of grounds of arrest, the Court recorded that the issue was no longer res integra. Referring to binding precedents, it observed that “the constitutional requirement of informing the arrestee of the grounds of arrest is mandatory in all offences under all statutes.” The Court stated that “the grounds of arrest must be communicated in writing to the arrestee in the language he understands,” subject to the prospective operation clarified in later decisions.
In the context of NDPS cases, the Court observed that “since the quantity of contraband determines whether the offence is bailable or non-bailable, specification of the quantity of the contraband seized is mandatory for effective communication of the grounds of arrest.” It further recorded that “In case of non compliance of the above, the arrest and the subsequent remand would be rendered illegal, and the arrestee should be set free forthwith. The grounds of arrest in respect of a person arrested on a warrant are not required to be furnished to him separately. The burden is on the police to establish the proper communication of the grounds of arrest. The filing of a charge sheet and cognizance of the order cannot validate an unconstitutional arrest.”
With respect to reliance placed on subsequent Supreme Court judgment Mihir Rajesh Shah (supra), mandating written communication in the language understood by the arrestee, the Court stated that “the dictum … could operate only prospectively and cannot be applied to an arrest made prior to the date of judgment.”
On the facts of the case, the Court noted that the arrest memo and arrest intimation were produced. It observed that “a perusal of the seizure mahazar shows a clear statement that the grounds of arrest were communicated to the arrestee at the time of arrest.” The Court also recorded that “there was telephonic communication regarding the arrest to the applicant’s father.”
The Court held that Therefore, I am of the view that there is compliance with Sections 47 and 48 of the BNSS and Article 22(1) ) of the Constitution of India. The bail application is, accordingly, dismissed.”
Advocates Representing the Parties
For the Petitioners: Sri. Sam Isaac Pothiyil, Advocate; Smt. S. Suraja, Advocate; Sri. Muhammed Suhair C.A., Advocate; Smt. Akshaya N.K., Advocate
For the Respondents: Sri. M.C. Ashi, Senior Public Prosecutor
Case Title: Kamal Kumar Mandal v. State of Kerala
Neutral Citation: 2026: KER:7240
Case Number: Bail Appl. No. 14491 of 2025
Bench: Justice Kauser Edappagath
