[Cites 20, Cited by 0]
Kerala High Court
Hassainar vs State Of Kerala on 6 February, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No.468/2026
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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. 468 OF 2026
CRIME NO.1059/2025 OF Kondotty Police Station, Malappuram
AGAINST THE ORDER DATED 23.10.2025 IN CMP NO.3340 OF
2025 OF SPECIAL COURT SC/ST (POA) ACT & NDPS ACT CASES,
MANJERI
PETITIONER/6TH ACCUSED:
HASSAINAR, AGED 23 YEARS
S/0 IBRAHIM C,KALIMANJA HOUSE, MANJESHWARAM,
VORKADY POST,KASARAGODE, PIN - 671323
BY ADV SHRI.RINSHAD T.P.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM, PIN - 682031
2 STATE OF KERALA
REPRESENTED BY STATION HOUSE OFFICER ,KONDOTTY
POLICE STATION ,MALAPPURAM, PIN - 673647
SRI.K.A. NOUSHAD, 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.468/2026
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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.6 in Crime
No.1059/2025 of Kondotty Police Station, Malappuram District.
The offences alleged are punishable under Sections 22(c), 27A
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
11.09.2025, the Inspector of Police, Kondotty Police Station had
seized 50.61 grams of MDMA from the joint possession of the
accused Nos. 1 to 3 while they were occupying room No.203 in
the Redbell Residency lodge in contravention of the NDPS Act.
Later, the applicant was arrested on 15.9.2025.
4. I have heard Sri. Rinshad T.P., the learned
counsel for the applicant and Sri. Noushad, the learned Senior
Public Prosecutor. Perused the case diary.
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
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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 15.9.2025 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 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
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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 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
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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 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 burden will always be on the Investigating
Officer/Agency to prove compliance with the requirements of
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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 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
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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 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
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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 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.
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(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. The notice served on the
relative of the applicant would also show that at the time of
arrest, specific reasons for arrest were communicated to him as
well. Therefore, the applicant is not entitled to be released on
bail. The bail application is, accordingly, dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
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APPENDIX OF BAIL APPL. NO. 468 OF 2026
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER DATED 23.10.2025
IN CMP NO.3340/2025 ON THE FILES OF
HON'BLE SPECIAL COURT FOR SC/ST (POA)
ACT & NDPS ACT CASES, MANJERI
Annexure A2 THE TRUE COPY OF NOTICE ISSUED TO THE
PETITIONER TO INFROM THE GROUND AND
REASONS FOR ARRET DATED 15.09.2025
Annexure A3 THE TRUE COPY OF NOTICE ISSUED U/S 48 OF
BNSS DATED 15.09.2025
Annexure A4 THE TRUE COPY OF REMAND REPORT DATED
15.09.2025
