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Kerala High Court
Anvar Sha vs State Of Kerala on 21 January, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:5089
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 21ST DAY OF JANUARY 2026 / 1ST MAGHA, 1947
BAIL APPL. NO. 12701 OF 2025
CRIME NO.104/2024 OF SULTHANBATHERY EXCISE RANGE OFFICE, WAYANAD
PETITIONER/ACCISED:
ANVAR SHA
AGED 32 YEARS
S/O NIZAMUDHEEN, EDAMARATH HOUSE, THAZHAVA POST,
THODIYUR VILLAGE, KARUNAGAPPALLY TALUK,
KOLLAM, PIN - 690523
BY ADVS.
SMT.DHANYA S NAIR
SRI.A.SHAMSUDEEN
SHRI.MOHAMMED RAZALI K.A
SHRI.RAHUL.S
SMT. RESHMI U.N.
SHRI.GANESH CHANDRAN S.
SHRI.BILAL SHAMSUDEEN
SHRI.ABY GEORGE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI, PIN - 682031
SRI.M.C.ASHI, SR. PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. No.12701 of 2025
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2026:KER:5089
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 sole accused in Crime No.
104/2024 of Sulthan Bathery Police Station, Wayanad District.
The offence alleged is punishable under Sections 22(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS
Act, for short).
3. The prosecution case, in short, is that the applicant
was found in possession of 160.77 grams of Methamphetamine
on 20.07.2024 at 6.30 p.m. while he was travelling in KSRTC bus
bearing registration No.KL-15A-2539 in contravention of the
NDPS Act and thereby committed the offence.
4. I have heard Smt.Dhanya S. Nair, 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
submitted that the requirement of informing the arrested person
of the grounds of arrest is mandatory under Article 22(1) of the
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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 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 20.07.2024 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
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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 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
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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 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
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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 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
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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 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
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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
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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.
(vii) The filing of charge sheet and cognizance of the
order cannot validate unconstitutional arrest.
14. I went through the case diary. It shows that the
grounds of arrest were intimated to the applicant and all
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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 learned counsel for the applicant submitted that in
Annexure A2 arrest memo, the offence has not been specifically
mentioned. It is true that relevant Sections of the offence has
not been specifically mentioned. However, it is clearly
mentioned that the applicant has been arrested for possessing
160.77 grams of Methamphetamine. Therefore, there is
compliance of Section 47 of BNSS.
Hence, the applicant is not entitled to be released on bail.
The bail application is, accordingly, dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
SKP
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APPENDIX OF BAIL APPL. NO. 12701 OF 2025
PETITIONER'S ANNEXURES:
Annexure A1 THE COPY OF CRIME AND OCCURRENCE REPORT IN
NDPS CRIME NO. 104/2024 OF SULTHAN BATHERY
EXCISE RANGE OFFICE
Annexure A2 THE COPY OF THE ARREST MEMO DATED
20.07.2024
Annexure A3 THE COPY OF THE ARREST INTIMATION NOTICE
DATED 20.7.2024
Annexure A4 THE COPY OF THE ORDER IN B.A NO. 11852 OF
2025 DATED 29.09.2025 OF THIS HON'BLE COURT
RESPONDENTS' ANNEXURES: NIL
TRUE COPY
P.A. TO JUDGE
