[Cites 18, Cited by 0]
Kerala High Court
Don Jose vs State Of Kerala on 27 January, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:6426
BAIL APPL. NO. 13191 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF JANUARY 2026 / 7TH MAGHA, 1947
BAIL APPL. NO. 13191 OF 2025
CRIME NO.74/2022 OF Excise Enforcement and Anti Narcotic
Special Squad, Ernakulam, Ernakulam
AGAINST THE JUDGMENT DATED 12.12.2024 IN Bail Appl.
NO.5074 OF 2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED:
DON JOSE
AGED 30 YEARS
S/O JOHNSON 17/1522 BALAYIL HOUSE, MUNDAMVELI P O
ERNAKULAM DISTRICT, PIN - 682507.
BY ADVS.
SRI.S.RAJEEV
SRI.V.VINAY
SRI.M.S.ANEER
SHRI.SARATH K.P.
SMT.DIPA V.
SHRI.ANILKUMAR C.R.
SHRI.K.S.KIRAN KRISHNAN
SHRI.AKASH CHERIAN THOMAS
SHRI.AZAD SUNIL
SRI.RAAJESH S.SUBRAHMANIAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF
KERALA, ERNAKULAM - 682031 (CRIME NO. 74/2022 OF EE
& ANSS ERNAKULAM)
2026:KER:6426
BAIL APPL. NO. 13191 OF 2025 2
OTHER PRESENT:
SRI.M.C.ASHI, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2026:KER:6426
BAIL APPL. NO. 13191 OF 2025 3
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.2 in Crime
No.74/2022 of Excise Enforcement and Anti-Narcotic Special Squad,
Ernakulam. The offences alleged are punishable under Sections
22(c) and 20(b)(2)(a) 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
14.10.2022 at about 02.30 a.m. the detecting officer had seized
2.3485 gms of LSD Stamp (115 nos) and 77 gms of Hashish Oil
from the house bearing No.22/1493, Balayil Veedu, Mundamveli,
Boundary Desom, Palluruthy, Kochi, the house owned by the
accused No.1 and he was arrested. But on investigation, it was
revealed that the son of the accused No.1 who is the accused No.2
herein is the kingpin of this narcotic deal. Thereby he was
arraigned as the accused No.2 and he was arrested on 26.12.2024.
4. I have heard Sri.S.Rajeev, the learned counsel for
the applicant and Sri.M.C.Ashi, the learned Senior Public
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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
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 26.12.2024 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
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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 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
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BAIL APPL. NO. 13191 OF 2025 6
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 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
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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
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 accused 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
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BAIL APPL. NO. 13191 OF 2025 8
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 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
2026:KER:6426
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
including offences under IPC/BNS.
(ii) The grounds of arrest must be communicated in
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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.
I went through the case diary. 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 arrest intimation given to the close
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relative i.e., a brother of the applicant, would also show that the
specific grounds of arrest and place of arrest were communicated
to him as well. 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. Therefore, the applicant is not
entitled to be released on bail. The bail application is, accordingly,
dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
DSV/27.01.2026
2026:KER:6426
BAIL APPL. NO. 13191 OF 2025 12
APPENDIX OF BAIL APPL. NO. 13191 OF 2025
PETITIONER ANNEXURES
Annexure I A COPY OF THE COMPLAINTS SUBMITTED BY
MOTHER OF THE PETITIONER TO THE DIFFERENT
AGENCIES
Annexure II A COPY OF THE COMPLAINTS SUBMITTED BY
MOTHER OF THE PETITIONER TO THE DIFFERENT
AGENCIES
Annexure III A MASS PETITION WAS SUBMITTED BY THE
LOCAL PEOPLE STATING TRUE FACTS
Annexure IV A COPY OF THE ORDER IN BA NO 5074/2024
Annexure V CERTIFIED COPY OF THE ORDER IN CRL MP NO
4656/2025 IN SC NO 868/2025 DATED
17.10.2025
