[Cites 15, Cited by 0]
Kerala High Court
Muneer vs State Of Kerala on 19 February, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
BA No.407/2026
2026:KER:14795
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947
BAIL APPL. NO. 407 OF 2026
CRIME NO.214/2025 OF Mattancherry Police Station, Ernakulam
AGAINST THE ORDER DATED 12.11.2025 IN CRLMC NO.3244 OF
2025 OF ADDITIONAL SESSIONS COURT - I, ERNAKULAM
PETITIONER/1ST ACCUSED:
MUNEER,
AGED 33 YEARS
SON OF HAMZA, VADAKKEL HOUSE, KALVATHY,
FORT KOCHI P.O, ERNAKULAM, PIN - 682001
BY ADVS. SHRI.ARJUN S.
SHRI.AZEEM HASSAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE SHO,
MATTANCHERY POLICE STATION,
MATTANCHERRY, KOCHI, PIN - 682002
SRI.K.A. NOUSHAD, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
5.02.2026, THE COURT ON 19.02.2026 DELIVERED THE FOLLOWING:
BA No.407/2026
2026:KER:14795
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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.1 in Crime
No.214/2025 of Mattancherry Police Station, Ernakulam. 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 the applicant was
found in possession of 51.870 grams of MDMA at House No.12/9,
Panayappilly Kara, Mattancherry Village on 16/6/2025 at 21.50
hours in contravention of the NDPS Act and Rules. It is further
alleged that the applicant procured the contraband from the
accused No.2 and the accused No.3 provided financial assistance
for the same.
4. I have heard Sri.Arjun S, the learned counsel for the
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applicant and Sri.K.A.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 since the
applicant was not furnished with the grounds of arrest, his arrest
was illegal and he is liable to be released on bail. The learned
counsel further submitted that there is non compliance of Section
42(2) of the NDPS Act. On the other hand, the learned 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 was further submitted that there is
compliance of Section 42 of the NDPS Act. It was also 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 17/6/2025, and since
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then, he has been in judicial custody.
7. I shall first deal with the point raised by the learned
counsel for the applicant regarding the non communication of the
grounds of arrest.
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
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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 the failure to communicate the
written grounds of arrest would render the arrest illegal,
necessitating the release of the accused, is no longer res integra.
In Pankaj Bansal v. Union of India and Others [(2024) 7 SCC 576]
and Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254],
the Supreme Court has held that the requirement of informing a
person of the written grounds of arrest in writing is a mandatory
requirement under Article 22(1) of the Constitution and Section
47 of the BNSS and absence of the same would render the arrest
illegal. Later in Vihaan Kumar v. State of Haryana and Others
(2025 SCC OnLine SC 269), it was reiterated that the requirement
of informing the person arrested of the grounds of arrest is not a
formality, but a mandatory constitutional requirement. However,
it was observed that there is no mandatory requirement to
communicate the grounds of arrest in writing. Recently, in Mihir
Rajesh Shah v. State of Maharashtra and Another (2025 SCC
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OnLine SC 2356), the three-Judge Bench of the Supreme Court
after referring to all the three decisions mentioned above held
that the 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. So far as the cases under the NDPS Act
are concerned, a Single Bench of this Court in Yazin S. v. State of
Kerala (2025 KHC OnLine 2383), Rayees R.M. v. State of Kerala
(2025 KHC 2086), and Vishnu N.P. v. State of Kerala (2025 KHC
OnLine 1262) took the view that the specification of the quantity
of the contraband seized is mandatory for the effective
communication of the grounds of arrest.
10. The records would show that the grounds of arrest
including the nature and quantity of the contraband seized from
the applicant have been duly communicated to him. The learned
counsel for the applicant vehemently argued that the notice
informing the intimation regarding the arrest issued to the
mother of the applicant which has been marked as Annexure 5
2026:KER:14795
does not contain the quantity of the contraband seized and
therefore the arrest was vitiated. Indeed Annexure 5 arrest
intimation does not mention the quantity of the contraband
involved in the case. The Supreme Court in Mihir Rajesh Shah
(supra) has clarified that the requirement to communicate the
written grounds of arrest to the arrestee would only apply
prospectively. The said dictum could be applied to the
requirement to communicate the written grounds of arrest to the
relatives of the arrestee as well. Thus, the mandate to furnish
the written grounds of arrest to the arrestee as well as to his
relatives cannot be made applicable to arrests made before the
date of judgment in Mihir Rajesh Shah (supra). If the arrest is
made before the date of judgment in Mihir Rajesh Shah (supra),
the communication of the grounds of arrest to the arrestee as
well as to the relative over phone or in person is sufficient for the
compliance of Sections 47 and 48 of the BNSS and Art.22(1) of
the Constitution of India [Muhammed Aslam v. State of Kerala
2026 KHC OnLine 94]. In this case, the arrest was made before
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the date of judgment in Mihir Rajesh Shah (supra).
11. I went through the search list which forms part of the
case diary. It would show that the quantity of the contraband
seized from the possession of the applicant has been clearly
mentioned. The mother of the applicant to whom Annexure 5
intimation was served is a signatory to the said search list. In the
search list, it is also stated that intimation was given in person to
the mother of the applicant. In Vihaan Kumar (supra), it was
specifically held that the police can prove communication of the
grounds of arrest based on case diary if those grounds were
incorporated in the diary entry. Therefore, I find that there is
satisfactory compliance of Sections 47 and 48 of the BNSS and
Art.22(1) of the Constitution of India.
12. So far as the contention of the learned counsel for the
applicant regarding non-compliance of Section 42 of the NDPS Act
is concerned, now it is settled that the issue whether there was
compliance of the procedure laid down under Section 42 of the
NDPS Act is a question of fact and it need not be considered while
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considering a bail application [See. Union of India through
Narcotics Control Bureau, Lucknow v. Md. Nawas Khan (2021 KHC
OnLine 6503) and Jomon v. State of Kerala (2025 (3) KHC 205)].
That apart, Annexure 2 would show that there is substantial
compliance of Section 42(2) of the NDPS Act.
The bail application fails and, accordingly, it is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
2026:KER:14795
APPENDIX OF BAIL APPL. NO. 407 OF 2026
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF CR.NO.214 OF 2025 OF
MATTANCHERY POLICE STATION ERNAKULAM
DISTRICT DTD 17.06.2025
Annexure 2 TRUE COPY OF THE REPORT FILED UNDER
SEC.42 OF NDPS ACT DTD 16.06.2025
Annexure 3 TRUE COPY OF THE ARREST MEMO DTD
16.06.2025
Annexure 4 TRUE COPY OF THE CUSTODY MEMO DTD
16.06.2025
Annexure 5 TRUE COPY OF THE ARREST INTIMATION
ISSUED BY THE DETECTING OFFICER DTD
16.06.2025
Annexure 6 TRUE COPY OF THE REMAND REPORT AND
REMAND ORDER IN CR.NO.214/2025 OF
MATTANCHERY POLICE STATION DTD
16.06.2025
Annexure 7 TRUE COPY OF THE REPORT UNDER SEC.57 OF
THE NDPS FILED BY THE DETECTING OFFICER
DTD 16.06.2025
Annexure 8 TRUE COPY OF THE ORDER OF THE HON'BLE
1ST ADDITIONAL SESSIONS COURT-ERNAKULAM
IN CRL.MC.NO.3244/2025 DTD 12.11.2025
