[Cites 19, Cited by 0]
Kerala High Court
Sarafudheen vs State Of Kerala on 1 April, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:29661
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 1ST DAY OF APRIL 2026/11TH CHAITHRA, 1948
BAIL APPL. NO. 1772 OF 2026
CRIME NO.587/2025 OF CHALISSERY POLICE STATION, PALAKKAD
AGAINST THE ORDER DATED 21.02.2026 IN CRMP 2/2026 IN CRMP NO.2 OF
2026 OF DISTRICT COURT & SESSIONS COURT / RENT CONTROL APPELLATE
AUTHORITY, PALAKKAD
PETITIONER/ACCUSED:
SARAFUDHEEN
AGED 31 YEARS, SON OF SAIDALAVI,
PANTHAPULAKKAL HOUSE, MUKKILAVEEDIKA, PARUTHUR,
PATTAMBI, PALAKKAD, PIN - 679303
BY ADV SHRI.ANEESH K.R
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADV.
SRI.M.C. ASHI, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.04.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1772 OF 2026
2
2026:KER:29661
ORDER
This application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short,
BNSS), seeking regular bail.
2. The applicant is the accused No.1 in
Crime No.587/2025 of Chalissery Police Station, Palakkad
District. The offences alleged are punishable under
Sections 22(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act 1985 (for short 'the NDPS
Act').
3. The prosecution case, in short, is that on
16.08.2025 at about 12.20 p.m., accused Nos.1 to 3 were
found in possession of 69.90 grams of MDMA in a house at
Narimada under the ownership of Seenath, Thalakkassery
House, in contravention of the NDPS Act and Rules and
thereby committed the aforementioned offences.
4. I have heard Sri. Aneesh K.R., the
learned counsel for the applicant and Sri.M.C.Ashi, the
learned Senior Public Prosecutor. Perused the case diary.
5. The learned counsel appearing for the
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
applicant submitted that the requirement of informing the
arrested person of the grounds of arrest is mandatory
under Article 22(1) of the Constitution of India and Section
47 of the BNSS and inasmuch as the applicant was not
furnished with the grounds of arrest, his arrest was illegal
and is liable to be released on bail. On the other hand, the
learned Senior Public Prosecutor submitted that all legal
formalities were complied with in accordance with Chapter
V of the BNSS at the time of the arrest of the applicant. It
is further submitted that the alleged incident occurred as
part of the intentional criminal acts of the applicant and
hence he is not entitled to bail at this stage.
6. The applicant was arrested on 16.08.2025
and since then he is in judicial custody.
7. Though prima facie there are materials on
record to connect the applicant with the crime, since the
applicant has raised a question of absence of
communication of the grounds of his arrest, let me
consider the same.
8. Chapter V of BNSS, 2023 deals with the
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
arrest of persons. Sub-section (1) of Section 35 of BNSS
lists cases when police may arrest a person without a
warrant. Section 47 of BNSS clearly states that every
police officer or other person arresting any person without
a warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other
grounds for such arrest. Article 22(1) of the Constitution of
India provides that no person who is arrested shall be
detained in custody without being informed, as soon as
may be, of the grounds for such arrest. Thus, the
requirement of informing the person arrested of the
grounds of arrest is not a formality but a mandatory
statutory and constitutional requirement. Noncompliance
with Article 22(1) of the Constitution will be a violation of
the fundamental right of the accused guaranteed by the
said Article. It will also amount to a violation of the right to
personal liberty guaranteed by Article 21 of the
Constitution.
9. The question whether failure to
communicate written grounds of arrest would render the
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
arrest illegal, necessitating the release of the accused, is
no longer res integra. The Supreme Court in Pankaj
Bansal v. Union of India and Others [(2024) 7 SCC
576], while dealing with Section 19 of the Prevention of
Money Laundering Act, 2002, has held that no person who
is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such
arrest. It was further held that a copy of written grounds of
arrest should be furnished to the arrested person as a
matter of course and without exception. In Prabir
Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC
254], while dealing with the offences under the Unlawful
Activities Prevention Act, 1967 (for short, 'UAPA'), it was
held that any person arrested for an allegation of
commission of offences under the provisions of UAPA or for
that matter any other offence(s) has a fundamental and a
statutory right to be informed about the grounds of arrest
in writing and a copy of such written grounds of arrest has
to be furnished to the arrested person as a matter of
course and without exception at the earliest. It was
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
observed that the right to be informed about the grounds
of arrest flows from Article 22(1) of the Constitution of
India, and any infringement of this fundamental right
would vitiate the process of arrest and remand.
10. In Vihaan Kumar v. State of Haryana
and Others [2025 SCC OnLine SC 269], the Supreme
Court, while dealing with the offences under IPC, reiterated
that the requirement of informing the person arrested of
the grounds of arrest is not a formality but a mandatory
constitutional requirement. It was further held that if the
grounds of arrest are not informed, as soon as may be
after the arrest, it would amount to the violation of the
fundamental right of the arrestee guaranteed under Article
22(1) of the Constitution, and the arrest will be rendered
illegal. It was also observed in the said judgment that
although there is no requirement to communicate the
grounds of arrest in writing, there is no harm if the
grounds of arrest are communicated in writing and when
arrested accused alleges non-compliance with the
requirements of Article 22(1) of the Constitution, the
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
burden will always be on the Investigating Officer/Agency
to prove compliance with the requirements of Article 22(1).
11. In Kasireddy Upender Reddy v. State
of Andhra Pradesh (2025 SCC OnLine SC 1228), the
Supreme Court held that reading out the grounds of arrest
stated in the arrest warrant would tantamount to
compliance of Art.22 of the Constitution. It was further
held that when an accused person is arrested on warrant
and it contains the reason for arrest, there is no
requirement to furnish the grounds for arrest separately
and a reading of the warrant to him itself is sufficient
compliance with the requirement of informing the grounds
of his arrest. In State of Karnataka v. Sri Darshan
(2025 SCC OnLine SC 1702), it was held that neither the
Constitution nor the relevant statute prescribes a specific
form or insists upon a written communication in every
case. Substantial compliance of the same is sufficient
unless demonstrable prejudice is shown. It was further
held that individualised grounds are not an inflexible
requirement post Bansal and absence of written grounds
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
does not ipso facto render the arrest illegal unless it results
in demonstrable prejudice or denial of an opportunity to
defend. However, in Ahmed Mansoor v. State (2025 SCC
OnLine SC 2650), another two Judge Bench of the
Supreme Court distinguished the principles declared in Sri
Darshan (supra) and observed that in Sri Darshan
(supra), the facts governing are quite different in the sense
that it was a case dealing with the cancellation of bail
where the chargesheet had been filed and the grounds of
detention were served immediately. Recently, in Mihir
Rajesh Shah v. State of Maharashtra and Another
(2025 SCC OnLine SC 2356), the three Judge Bench of the
Supreme Court held that grounds of arrest must be
informed to the arrested person in each and every case
without exception and the mode of communication of such
grounds must be in writing in the language he
understands. It was further held that non supply of
grounds of arrest in writing to the arrestee prior to or
immediately after arrest would not vitiate such arrest
provided said grounds are supplied in writing within a
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
reasonable time and in any case two hours prior to the
production of arrestee before the Magistrate.
12. A Single Bench of this Court in Yazin S.
v. State of Kerala (2025 KHC OnLine 2383) and in
Rayees R.M. v. State of Kerala (2025 KHC 2086) held
that in NDPS cases, since the quantity of contraband
determines whether the offence is bailable or non bailable,
specification of quantity is mandatory for effective
communication of grounds. It was further held that burden
is on the police to establish proper communication of the
arrest. In Vishnu N.P. v. State of Kerala (2025 KHC
OnLine 1262), another Single Judge of this Court relying on
all the decisions of the Supreme Court mentioned above
specifically observed that the arrest intimation must
mention not only the penal section but also the quantity of
contraband allegedly seized.
13. The following principles of law emerge
from the above mentioned binding precedents.
(i) The constitutional mandate of informing
the arrestee the grounds of arrest is mandatory in all
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
offences under all statutes including offences under
IPC/BNS.
(ii) The grounds of arrest must be
communicated in writing to the arrestee in the language he
understands.
(iii) In cases where the arresting
officer/person is unable to communicate the grounds of
arrest in writing soon after arrest, it be so done orally. The
said grounds be communicated in writing within a
reasonable time and in any case at least two hours prior to
the production of the arrestee for the remand proceedings
before the Magistrate.
(iv) In NDPS cases, specification of quantity of
the contraband seized is mandatory for effective
communication of grounds of arrest.
(v) 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.
(vi) The burden is on the police to establish
the proper communication of grounds of arrest.
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
(vii) The filing of charge sheet and cognizance
of the order cannot validate unconstitutional arrest.
14. I went through the case diary. On a
perusal of the case diary, it is noticed that separate
grounds of arrest were communicated to the applicant.
However, except for mentioning that the arrest is for illegal
possession of the narcotic drugs, there is no reference to
the quantity of the contraband seized from the applicant.
Hence, I hold that the requirement of Article 22(1) of the
Constitution and Section 47 of BNSS have not been
satisfied. Therefore, applicant's arrest and his subsequent
remand are nonest and he is entitled to be released on
bail.
In the result, the application is allowed on the
following conditions: -
(i) The applicant shall be released on bail on
executing a bond for Rs.1,00,000/- (Rupees One lakh only)
with two solvent sureties for the like sum each to the
satisfaction of the jurisdictional Magistrate/Court.
(ii) The applicant shall fully co-operate with
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
the investigation.
(iii) The applicant shall appear before the
investigating officer between 10.00 a.m and 11.00 a.m.
every Saturday until further orders. He shall also appear
before the investigating officer as and when required.
(iv) The applicant shall not commit any
offence of a like nature while on bail.
(v) The applicant shall not attempt to contact
any of the prosecution witnesses, directly or through any
other person, or in any other way try to tamper with the
evidence or influence any witnesses or other persons
related to the investigation.
(vi) The applicant shall not leave the State of
Kerala without the permission of the trial Court.
(vii) The application, if any, for
deletion/modification of the bail conditions or cancellation
of bail on the grounds of violating the bail conditions shall
be filed at the jurisdictional court
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
ARK
BAIL APPL. NO. 1772 OF 2026
2026:KER:29661
APPENDIX OF BAIL APPL. NO. 1772 OF 2026
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE ORDER DATED 21.02.2026
IN CRL MP NO 2/2026 IN CRIME NO 587/2025 OF
CHALLISSERY POLICE STATION
ANNEXURE A2 THE TRUE COPY OF THE DATED 12.02.2026 IN BA
NO 731/2026 OF HIGH COURT
ANNEXURE A3 HIGH COURT OF KERALA IS PRODUCED HEREWITH AND
MARKED AS ANNEXURE A2. THE TRUE COPY OF THE
ORDER DATED 12.03.2026 IN CRL MP NO 3/2026 IN
CRIME NO CRIME NO 587/2025 OF CHALLISSERY
POLICE STATION
