[Cites 18, Cited by 0]
Kerala High Court
Sooraj vs State Of Kerala on 9 February, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No. 14832/2025
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2026:KER:11378
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 9TH DAY OF FEBRUARY 2026 / 20TH MAGHA, 1947
BAIL APPL. NO. 14832 OF 2025
CRIME NO.117/2023 OF Kollengode Police Station, Palakkad
AGAINST THE JUDGMENT DATED 24.09.2024 IN Bail Appl.
NO.1614 OF 2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.6:
SOORAJ, AGED 31 YEARS
S/O JAYAPRAKASH, SOORAJ NIVAS, PUNUKKANOOR,
CHERUKARA MOOLA, KOTTAMKARA VILLAGE, PERUMPUZHA
P.O., KOLLAM DISTRICT, PIN - 691504
BY ADVS. SRI.C.DHEERAJ RAJAN
SHRI.ANAND KALYANAKRISHNAN
SHRI.LIBIN VARGHESE
SHRI.SOORAJ KRISHNAN K.V.
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA AT ERNAKULAM, PIN - 682031
SRI.M.C. ASHI, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No. 14832/2025
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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
S.C.No.758/2023 on the files of the Additional District and Sessions
Court-V, Palakkad in Crime No.117/2023 of Kollengode Police Station,
Palakkad District. The offences alleged are punishable under Section
22(c) read with Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short the NDPS Act).
3. The prosecution case, in short, is that on
13.02.2023 at about 17.30 hours at Valluvakund, Kollengode-
Nenmara public road, the accused Nos. 1 to 5 were found in
possession of 88.88 grams of MDMA in a maruthi ignis car bearing
registration No.KL-02-BC-8777. It is alleged that the accused Nos. 1
to 5 brought the contraband from Bangalore for the applicant and
upon their confession statement, the applicant is arrayed as the
accused in the above crime.
4. I have heard Sri. C. Deeraj Rajan, 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 applicant
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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 18.2.2023 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
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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 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
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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 Article 22(1).
11. In Kasireddy Upender Reddy v. State of
Andhra Pradesh (2025 SCC OnLine SC 1228), the Supreme Court
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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 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
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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 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
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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.
(vii) The filing of charge sheet and cognizance of the
order cannot validate unconstitutional arrest.
14. I went through the case diary. In the arrest memo,
separate grounds of arrest were not communicated to the applicant
in terms of Section 47 of the BNSS and Article 22(1) of the
Constitution of India. Hence, I hold that the requirement of Article
22(1) of the Constitution and Section 47 of BNSS have not been
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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 not commit any offence of a like
nature while on bail.
(iii) 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.
(iv) The applicant shall not leave the State of Kerala
without the permission of the trial Court.
(v) 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
kp
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APPENDIX OF BAIL APPL. NO. 14832 OF 2025
PETITIONER ANNEXURES
Annexure 1 THE TRUE COPY OF THE ORDER DATED
18.04.2023 IN CRL MC NO. 1270/2023 ON THE
FILES COURT OF SESSIONS, PALAKKAD
Annexure 2 THE TRUE COPY OF THE ORDER DATED
31.05.2024 IN BA NO. 1614/2024 PASSED BY
THIS HON'BLE COURT
Annexure 3 THE TRUE COPY OF THE ORDER DATED
24.09.2024 IN BA NO. 1614/2024 PASSED BY
THIS HON'BLE COURT
Annexure 4 THE TRUE COPY OF ORDER DATED 04.10.2024 IN
Annexure 5 THE TRUE COPY OF ORDER DATED 16.10.2024 IN
Annexure 6 THE TRUE COPY OF THE ORDER DATED
04.12.2024 IN BA NO. 9607/2024 PASSED BY
THIS HON'BLE COURT
Annexure 7 THE TRUE COY OF THE ORDER DARED 05.06.2025
