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Kerala High Court
Dona Paul vs State Of Kerala on 29 January, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:7239
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. 13751 OF 2025
CRIME NO.449/2025 OF EDATHALA POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED NO.2:
DONA PAUL
AGED 25 YEARS
DAUGHTER OF PAUL, VATTAPPILLIL HOUSE
KALLAMALA, PALAKKAD, PIN - 678582
SRI.AMALJITH C. ANU
SRI.M.S.SARUN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, PIN - 682031
SRI.M.C.ASHI, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO. 13751 OF 2025
2
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.449/2025 of Edathala Police Station, Ernakulam District. The
offences alleged are punishable under Sections 22(c), 20(b)(ii)(A)
and 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short 'NDPS Act').
3. The prosecution case, in short, is that on 10.05.2025 at
about 04:15 p.m., the applicant, along with the accused No.1, was
found in possession of 58.73 grams of MDMA and 27 grams of
Ganja from room No.1004 of the first floor of the Royal Enclave
building near Manalimukku, Edathala.
4. I have heard Sri.Amaljith C. Anu, 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, her
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 she is not
entitled to bail at this stage.
6. The applicant was arrested on 10.05.2025 and since
then she 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
her 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
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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 of the
fundamental right of the arrestee guaranteed under Article 22(1)
of the Constitution, and the arrest will be rendered illegal. It was
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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 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
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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 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.
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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 writing
to the arrestee in the language she understands.
(iii) In cases where the arresting officer/person is unable to
communicate the grounds of arrest in writing soon after arrest, it
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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. On a perusal of the case
diary, it is noticed that separate grounds of arrest were
communicated to the applicant and her relatives. However, except
for mentioning that the arrest is for illegal possession of narcotic
drugs, there is no reference to the quantity of the contraband
seized from the applicant in the arrest memo and the arrest
intimation given to the applicant and her relatives, respectively.
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The quantity of contraband is necessary to be mentioned since it
enables the applicant to identify whether he is involved in a
bailable or non-bailable offence or whether the quantity involved
is a small, intermediate or commercial quantity. 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
her subsequent remand are nonest and she 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. She 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
NP
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APPENDIX OF BAIL APPL. NO. 13751 OF 2025
PETITIONER ANNEXURES
Annexure 1 FIR IN CRIME 449/2025 OF EDATHALA PS
Annexure 2 COPY OF ORDER IN CRL.M.C 3260/2025 OF
HON'BLE SESSIONS COURT, ERNAKULAM
