[Cites 22, Cited by 0]
Kerala High Court
Muhammed Raizal Subair vs Narcotic Control Bureau on 21 January, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No.13416/2025
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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. 13416 OF 2025
OCCURANCE REPORT NO.8/2025 OF NARCOTICS CONTROL BUREAU,
KOCHI, Ernakulam
AGAINST THE ORDER DATED 29.10.2025 IN CRMC NO.3040 OF
2025 OF ADDITIONAL SESSIONS COURT-1, ERNAKULAM
PETITIONER/1ST ACCUSED:
MUHAMMED RAIZAL SUBAIR, AGED 25 YEARS
S/O SUBAIR K. M., KONNATHUMATTAM HOUSE, MARKET
P.O., KAVUMAKARA, MUVATTUPUZHA, ERNAKULAM DISTRICT
- 686673
BY ADVS. SRI.P.M.RAFEEK
SHRI.ANTONY PAUL
RESPONDENT/STATE:
NARCOTIC CONTROL BUREAU
COCHIN REP. BY THE SPECIAL PUBLIC PROSECUTOR,
DISTRICT COURT, ERNAKULAM, PIN - 682011
BY ADVS. SHRI.R.VINU RAJ
SHRI.K.K.SUBEESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.13416/2025
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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.1 in O.R.
No.08/2025 of Narcotic Control Bureau, Cochin. The offences
alleged are punishable under Sections 22(c), 22(A), 23(c), 28 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
07.10.2025 at Kochi International Mail Center, the officers of the
NCB, Cochin Zonal Unit seized 0.11 gms of thick multi-coloured
design paper believed to be LSD, 0.80 gms of Cocaine and 1.21
gms of MDMA. During the course of investigation, the applicant
was summoned and his voluntary statement was recorded. It
established his involvement in the trafficking of seized narcotic
substance.
4. I have heard Sri.P.M. Rafeek the learned counsel
for the applicant and Sri. R. Vinu Raj, the learned Special 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 Special 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 10.10.2025 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 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
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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 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
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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 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
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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 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
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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 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
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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 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.
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(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.
Annexure A2 is the intimation regarding arrest given to the
applicant and Annexure A7 is the intimation of arrest given to the
relative of the applicant. They contain the nature of the
contraband seized from the possession of the applicant and also
the reason for arrest. 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. 13416 OF 2025
PETITIONER ANNEXURES
Annexure A 1 TRUE COPY OF ORDER OF HON'BLE ADDITIONAL
SESSIONS COURT, ERNAKULAM IN CRL.M.C.
NO. 3040/2025 DATED ON 29-10-2025
Annexure A2 TRUE COPY OF 'GROUNDS OF ARREST' DATED
Annexure A3 TRUE COPY OF JUDGMENT IN 2024 KHC 6286
PRABIR PURKAYASTHA V. STATE (NCT OF
DELHI)
Annexure A4 TRUE COPY OF JUDGMENT IN 2025 KHC 6116
VIHAAN KUMAR V. STATE OF HARYANA
Annexure A5 TRUE COPY OF JUDGMENT IN 2025 (4) KHC SN
19 6116 KASIREDDY UPENDER REDDY V. STATE
OF ANDHRA PRADESH
Annexure A6 TRUE COPY OF JUDGMENT IN SHAHINA V.
STATE OF KERALA 2025 KHC 706
Annexure A7 TRUE COPY OF 'ARREST INTIMATION' DATED
Annexure A8 TRUE COPY OF JUDGMENT IN KATHIRAVAN RAVI
VS ENFORCEMENT DIRECTORATE IN BAIL
APPLICATION NO.11122/2025 DATED
24.09.2025
Annexure A9 TRUE COPY OF MASTERS DEGREE CERTIFICATE
OF THE PETITIONER
Annexure A10 TRUE COPY OF PROVISIONAL OFFER LETTER
ISSUED TO THE PETITIONER
Annexure A11 A TRUE COPY OF THE REMAND APPLICATION
DATED 11-10-2025 FILED BY THE RESPONDENT
