Recently, the Delhi High Court held that failure to furnish written grounds of arrest within the constitutionally mandated time frame renders both the arrest and the subsequent remand illegal, irrespective of the statute under which the arrest is made, though such illegality would not automatically invalidate the investigation or trial. The Court granted regular bail to an accused booked under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') after finding that the constitutional safeguard under Article 22(1) had been violated. The Court observed that communication of grounds of arrest is “not a technical formality but a substantive, sacrosanct safeguard of personal liberty.”
Brief facts:
The case arose out of an FIR registered by the Special Cell, Delhi, under Sections 8/20/21/25/29 and later Sections 22/27A of the NDPS ACT, along with Sections 238B/209 of the Bharatiya Nyaya Sanhita, in relation to a narcotics investigation. The Petitioner was arrested in Gujarat and produced before the concerned court for transit remand before being brought to Delhi. After the completion of the investigation, a chargesheet came to be filed. The matter reached the Delhi High Court through a petition seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, where the principal issue that arose for consideration was whether failure to furnish written grounds of arrest within the stipulated constitutional framework rendered the arrest and subsequent remand legally unsustainable.
Contentions of the Petitioner:
The Petitioner argued that the arrest memo merely recorded generic reasons for arrest and that no personalised written grounds of arrest were ever supplied to the accused. The Counsel contended that the written communication of grounds of arrest is a mandatory constitutional safeguard under Article 22(1) of the Constitution. The Petitioner further submitted that the requirement was not merely prospective and that failure to furnish written grounds before remand proceedings rendered the arrest and detention illegal. The Counsel also argued that the omission caused serious prejudice by depriving the petitioner of an effective opportunity to consult counsel and oppose transit and police custody remand.
Contentions of the Respondent:
Opposing the bail plea, the State argued that at the time of the petitioner’s arrest, there was no binding requirement mandating the written communication of grounds of arrest in every case. The Counsel contended that the ruling in Mihir Rajesh Shah vs. State of Maharashtra & Anr. operated prospectively and therefore could not invalidate the Petitioner’s arrest. The State further submitted that no demonstrable prejudice had been caused to the petitioner and that any lapse was merely a curable procedural irregularity. The Counsel also argued that the remand applications filed before the Gujarat Magistrate and the Special Judge at Patiala House Courts sufficiently conveyed the grounds of arrest to the accused.
Observation of the Court:
The court noted that “the consistent thread running through Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar, Mihir Rajesh Shah, and Dr. Rajinder Rajan is that the requirement of informing an arrestee of the grounds of arrest is not a technical formality but a substantive, sacrosanct safeguard of personal liberty. These decisions unequivocally hold that such grounds must be communicated in writing, in a language understood by the arrestee, at the earliest, and in any event within a time‑frame which ensures that the arrestee has a fair and effective opportunity to consult counsel, oppose remand, and seek bail. They further draw a clear distinction between generic “reasons for arrest” as routinely recorded in arrest memos and “grounds of arrest” which are personal and specific to the accused; observing that the former cannot be treated as a substitute for the latter.”
The Bench observed that the constitutional safeguard under Article 22(1) cannot be diluted into a mere procedural formality and reaffirmed that communication of grounds of arrest is a substantive protection flowing directly from the guarantee of personal liberty. Referring to the line of Supreme Court decisions in multiple cases, the Bench emphasised that the requirement of furnishing written grounds of arrest is now firmly embedded in constitutional jurisprudence. The Court clarified that generic reasons for arrest recorded in an arrest memo cannot substitute specific and personalised grounds of arrest, explaining why a particular individual is being deprived of liberty. It further held that such grounds must be supplied in writing, in a language understood by the accused, and within a time-frame sufficient to enable the arrestee to consult counsel, oppose remand, and seek bail effectively.
The Court further held that the ruling in Mihir Rajesh Shah vs. State of Maharashtra & Anr did not create a new procedural requirement applicable only prospectively, but merely reaffirmed constitutional protections already recognised through earlier judgments beginning with Pankaj Bansal vs. Union of India and Ors. Rejecting the State’s contention regarding prospective operation, the Bench noted that the Supreme Court in Dr Rajinder Rajan vs. Union of India and Anr. had granted relief even in relation to arrests made prior to the pronouncement in Mihir Rajesh Shah vs. State of Maharashtra & Anr. Applying these principles to the present case, the Court found that no written grounds of arrest had been supplied to the petitioner either at the time of arrest in Gujarat or before the remand proceedings. The arrest memo merely narrated broad reasons for arrest, while the transit remand application was neither served upon the petitioner nor contained any specific grounds attributable to him. The Court therefore concluded that the constitutional mandate was violated from the very inception of the arrest process.
The Bench emphasised that the omission was not a curable procedural irregularity but a substantive constitutional infraction that caused demonstrable prejudice to the petitioner. The Court observed that failure to furnish written grounds of arrest deprived the petitioner of a meaningful opportunity to instruct counsel and effectively oppose both the transit remand proceedings in Gujarat and the subsequent police custody remand in Delhi. Stressing the underlying object of Article 22(1), the Court observed that the timely communication of grounds of arrest is intended to equip an arrestee with adequate knowledge to challenge the deprivation of liberty in an informed and effective manner. Rejecting the State’s argument that the lapse was merely technical, the Court ultimately held that non-supply of written grounds of arrest within the stipulated window vitiates the arrest and the remand, irrespective of the statute under which the arrest is made, though without invalidating the investigation or trial.
The decision of the Court:
Allowing the bail application, the Court granted regular bail to the petitioner subject to conditions including furnishing a personal bond of ₹1 lakh with two sureties, surrender of passport, and non-interference with witnesses or evidence. While clarifying that the investigation and trial would continue unaffected, the Court held that illegality in arrest and remand arising from violation of Article 22(1) entitled the petitioner to be released from custody.
Case Title: Brijesh Kothia Versus State NCT Of Delhi
Case No.: Bail Appln. 439/2026
Coram: Justice Anup Jairam Bhambhani
Advocates for the Petitioner: Adv. Aditya Aggarwal, Adv. Naveen Panwar, Adv. Kajol Garg, Adv. Mohd. Yasir
Advocates for the State: SPP Akhand Pratap Singh, Adv. Samidhi Dobhal, Adv. Krishna M. Chandel, Adv. Hritwik Maurya, Adv. Utkarsh Singh, Adv. Apoorv Paliya, SI Dinesh Kumar
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