[Cites 21, Cited by 0]
Kerala High Court
Rashad Muhammed vs State Of Kerala on 6 February, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No. 453 of 2026
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2026:KER:10767
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 6TH DAY OF FEBRUARY 2026 / 17TH MAGHA, 1947
BAIL APPL. NO. 453 OF 2026
CRIME NO.1131/2025 OF KONDOTTY POLICE STATION, MALAPPURAM
AGAINST THE ORDER DATED 31.12.2025 IN CRL.MP NO.3854 OF 2025
OF SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES,
MANJERI
PETITIONER/ACCUSED NO.3:
RASHAD MUHAMMED,
AGED 20 YEARS
BARLIMMAL PARAMBA HOUSE,ILLATHUPADI,
AIKKARAPPADI,KERALA, PIN - 673637
BY ADVS.
SHRI.AKSHAY JOY
SHRI.SAIBY JOSE KIDANGOOR
SMT.SREELAKSHMI DEEPSHA
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 STATION HOUSE OFFICER,
KONDOTTY POLICE STATION, KONDOTTY POST,
MALAPPURAM DISTRICT, KERALA, PIN - 673638
SRI.M.C.ASHI, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.02.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No. 453 of 2026
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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.3 in Crime
No.1131/2025 of Kondotty Police Station, Malappuram
District. The offences alleged are punishable under Sections
22(c) and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
3. The prosecution case, in short, is that on
05.10.2025, the accused Nos.1 to 7 were found in possession
of 152.64 grams of MDMA along with 0.65 grams of Ecstasy,
kept in 2 cars bearing Reg. Nos. KL-84-C7458 & KL-84-D-3342
respectively, with the intention of sale, and thereby
committed the offences.
4. I have heard Sri.Akshay Joy, the learned counsel for
the applicant and Sri.M.C.Ashi, the learned Senior Public
Prosecutor. Perused the case diary.
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5. The learned counsel appearing for the 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 05.10.2025 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
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of his arrest, let me consider the same.
8. Chapter V of BNSS, 2023 deals with the 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.
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9. The question whether failure to communicate
written grounds of arrest would render the 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
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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 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
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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 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 acused
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
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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 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
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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 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
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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 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
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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.
(vii) The filing of charge sheet and cognizance of the
order cannot validate unconstitutional arrest.
I went through the case diary. It shows that the grounds
of arrest were intimated to the applicant and all formalities in
accordance with Chapter V of BNSS have been complied with.
The notice served on the applicant under Section 47 of BNSS
shows that at the time of his arrest, the specific grounds and
reasons for arrest were communicated to him. It would further
show that the grounds of arrest and the reasons for the arrest
were communicated to the relative of the applicant over the
phone. In the notice prepared under Section 48 of the BNSS, it
is specifically stated that it was intimated to the relative over
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phone. In the said document, the applicant has also signed.
This Court has already held that the requirement to
communicate the grounds of arrest to the arrestee as well as
to his relative in writing is not required if the arrest is effected
prior to the judgment in Mihir Rajesh Shah (supra) and the
communication of the grounds of arrest to the arrestee or his
relative over the phone would be sufficient. (See Muhamed
Aslam v. State of Kerala [2026 KHC OnLine 94]). Therefore,
I am of the view that there is due compliance with Sections 47
and 48 of the BNSS and Article 22(1) of the Constitution of
India. Therefore, the applicant is not entitled to be released
on bail. The bail application is, accordingly, dismissed.
Sd/-
DR. KAUSER EDAPPAGATH,
JUDGE
APA
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APPENDIX OF BAIL APPL. NO. 453 OF 2026
PETITIONER ANNEXURES
ANNEXURE 1 THE TRUE PRINT-OUT OF F.I.R. DOWNLOADED FROM
THUNA PORTAL OF KERALA POLICE DEPT. IN CRIME
NO. 1131/2025 OF KONDOTTY POLICE STATION,
MALAPPURAM IS PRODUCED HEREWITH, MARKED AS
ANNEXURE 1.
ANNEXURE 2 PRINT-OUT OF DIGITAL COPY OF THE ORDER DATED
31/12/2025 DOWNLOADED FROM DCMS PORTAL IN
CRL.M.C. NO. 3854/2025 OF THE SPECIAL COURT FOR
SC/ST (POA) ACT & NDPS ACT CASES, MANJERI IS
PRODUCED HEREWITH AND IS MARKED AS ANNEXURE 2.
ANNEXURE 3 THE TRUE COPY OF ONE OF THE ORDERS DATED
04/07/2025 IN SHAHINA V. STATE OF KERALA (B.A.
NO.6366/2025 (2025:KER:48864)) IS PRODUCED
HEREWITH, MARKED AS ANNEXURE 3.
ANNEXURE 4 THE TRUE COPY OF THE ORDER DATED 17/09/2025 IN
MUHAMMED MISHAL V. STATE OF KERALA (B.A.
NO.11288/2025 (2025:KER:69071)) IS PRODUCED
HEREWITH, MARKED AS ANNEXURE 4.
