Ashkar vs State Of Kerala
2026 Latest Caselaw 834 Ker

Kerala High Court

Ashkar vs State Of Kerala on 29 January, 2026

Author: Kauser Edappagath

Bench: Kauser Edappagath

B.A.No. 14107 of 2025

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           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

   THURSDAY, THE 29TH DAY OF JANUARY 2026 / 9TH MAGHA, 1947

                  BAIL APPL. NO. 14107 OF 2025

CRIME NO.294/2025 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM
 IN SC NO.1892 OF 2025 OF ADDITIONAL DISTRICT COURT (ADHOC)-
                    IV, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.2:
          ASHKAR,
          AGED 43 YEARS, S/O ISMAIL,
          VILAKKODANTEVIDA VEETTIL,
          NEAR PUTHOOR FISH MARKET,
          PUTHOOR VILLAGE, THALASSERY TALUK,
          KANNUR DISTRICT, PIN - 670692
          BY ADVS.
          SRI.K.MOHAMMED RAFEEQ
          SRI.BIBIN MATHEW
          SRI.P.M.MATHEW
          SMT.VISHNUMAYA ANANDAN
          SHRI.SONYMON ANTONY
          SHRI.ABHIJITH P.A.
          SHRI.SANALDEV E.P.
          SMT.SHIFANA M.
RESPONDENTS/STATE AND COMPLAINANT:
    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM DISTRICT, PIN - 682031
    2     STATION HOUSE OFFICER,
          NEMOM POLICE STATION,
          THIRUVANANTHAPURAM DISTRICT, PIN - 695020
           SRI.K.A. NOUSHAD, SR. PP
     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 B.A.No. 14107 of 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.2 in Crime

No.294/2025 of Nemom Police Station, Thiruvananthapuram

District. The offence alleged is punishable under Section 22(c)

of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The prosecution case, in short, is that on

02.03.2025 at 12:20 hours, the accused No.1 was found in

possession of 71.32 grams of MDMA in a Tamil Nadu SRTC bus

bearing registration No. TN-74-N-2094 near Pravachambalam

junction and thereby committed the offence.

4. I have heard Sri.K.Mohammed Rafeeq, the learned

counsel for the 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

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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 22.03.2025 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

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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 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,

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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 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

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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

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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 the relevant statute prescribes a specific

form or insists upon a written communication in every case.

Substantial compliance of the same is sufficient unless

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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.

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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

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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/she 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

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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. Annexure-3 is the

arrest memo and Annexure-4 is the arrest intimation given to

the applicant. Annexure-6 is the communication given to the

applicant under Section 47 of the BNSS. In none of these

documents, there is any reference to the quantity of the

contraband seized from the applicant. The quantity of the

contraband is necessary to be mentioned, since it enables the

applicant to ascertain whether he is involved in a bailable or

non-bailable offence and whether the quantity involved is

small, intermediate or commercial. Annexure-5 is the

intimation given to the wife of the applicant, in which also

there is no reference to the quantity of the contraband seized

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from the applicant. Hence, I hold that the requirement of

Article 22(1) of the Constitution and Section 47 of BNSS have

not been 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 fully co-operate with the

investigation.

(iii) The applicant shall appear before the investigating

officer between 10.00 a.m and 11.00 a.m. every Saturday

until further orders. He shall also appear before the

investigating officer as and when required.

(iv) The applicant shall not commit any offence of a like

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nature while on bail.

(v) 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.

(vi) The applicant shall not leave the State of Kerala

without the permission of the trial Court.

(vii) 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 APA

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APPENDIX OF BAIL APPL. NO. 14107 OF 2025

PETITIONER ANNEXURES

ANNEXURE-1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 294/2025 OF NEMOM POLICE STATION ANNEXURE-2 TRUE COPY OF THE REMAND REPORT DATED 22.03.2025 ANNEXURE-3 TRUE COPY OF THE ARREST MEMO OF THE PETITIONER IN CRIME NO. 294/2025 OF NEMOM POLICE STATION ANNEXURE-4 TRUE COPY OF THE ARREST INTIMATION PREPARED BY THE NEMOM POLICE ANNEXURE-5 TRUE COPY OF THE NOTICE ISSUED TO THE WIFE OF THE PETITIONER ANNEXURE-6 TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 47 OF THE BHARATIYA NAGARAIK SURAKSHA SANHITA,

ANNEXURE-7 TRUE COPY OF THE ORDER DATED 24.10.2025 IN CRL MP NO. 4016/2025 ON THE FILE OF THE HONOURABLE ADDITIONAL DISTRICT AND SESSIONS COURT - IV, THIRUVANANTHAPURAM ANNEXURE-8 TRUE COPY OF THE ORDER DATED 04.07.2025 IN BA NO. 7917/2025 ON THE FILE OF THE HONOURABLE HIGH COURT OF KERALA ANNEXURE-9 TRUE COPY OF BAIL ORDER DATED 23.07.2025 OF THE FIRST ACCUSED IN CRL MP NO. 2847/2025 ON THE FILE OF HONOURABLE ADDITIONAL DISTRICT AND SESSIONS COURT-I, THIRUVANANTHAPURAM. ANNEXURE-10 TRUE COPY OF BAIL ORDER DATED 01.08.2025 OF THE THIRD ACCUSED IN C.M.P NO. 3066/2025 ON THE FILE OF HONOURABLE ADDITIONAL DISTRICT AND SESSIONS COURT-I, THIRUVANANTHAPURAM. ANNEXURE-11 TRUE COPY OF BAIL ORDER DATED 27.11.2025 OF THE FOURTH ACCUSED IN BA NO. 13330/2025 ON THE FILE OF HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.