[Cites 18, Cited by 0]
Kerala High Court
Muhammed Fasil C vs State Of Kerala on 29 January, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:7250
1
BAIL APPL. NO. 14738 OF 2025
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. 14738 OF 2025
CRIME NO.1059/2025 OF KONDOTTY POLICE STATION, MALAPPURAM
PETITIONER/ACCUSED NO.7:
MUHAMMED FASIL C
AGED 29 YEARS
S/O.IBRAHIM V, PUTHIYAPURA HOUSE,
MERUVAMBAYIL, NEERVELI POST,
MANGATTIDAM, KANNUR DISTRICT.,
PIN - 670701
BY ADV SRI.VIVEK VENUGOPAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI., PIN - 682031
OTHER PRESENT:
SMT.SREEJA V., 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. 14738 OF 2025
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.7 in Crime
No.1059/2025 of Kondotty Police Station, Malappuram
District. The offences alleged are punishable under Sections
22(c), 27(A) r/w Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
3. The prosecution case, in short, is that the Inspector
of Police, Kondotty raided and seized 50.61 grams of MDMA
from the joint possession of accused Nos.1 to 3 on 11.09.2025
while the said three accused persons were occupying room
No.203 in the Redbell Residency Lodge.
4. I have heard Sri.Vivek Venugopal, the learned
counsel for the applicant and Smt.Sreeja V., the learned Senior
Public Prosecutor. Perused the case diary.
5. The learned counsel appearing for the applicant
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BAIL APPL. NO. 14738 OF 2025
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 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 15.09.2025 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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BAIL APPL. NO. 14738 OF 2025
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, necessitating
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BAIL APPL. NO. 14738 OF 2025
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 at the earliest. It was observed that the right
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BAIL APPL. NO. 14738 OF 2025
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 alleges non-compliance with the requirements
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BAIL APPL. NO. 14738 OF 2025
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
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BAIL APPL. NO. 14738 OF 2025
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
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BAIL APPL. NO. 14738 OF 2025
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
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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.
(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.
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(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.
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 case records
would further show that the intimation regarding the arrest, in
compliance with Section 48 of the BNSS was given to the close
relative of the applicant through WhatsApp. The intimation
sent through Whatsapp would amount to an intimation in
writing. The Supreme Court's judgment in Mihir Rajesh
Shah (supra) which mandates the furnishing of written
grounds of arrest to an accused before remand in all offences
will operate prospectively and cannot be applied to arrests
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made prior to the date of the judgment. The arrest in this case
was prior to the judgment in Mihir Rajesh Shah (supra).
Therefore, the applicant is not entitled to be released on bail.
The bail application is, accordingly, dismissed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
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BAIL APPL. NO. 14738 OF 2025
APPENDIX OF BAIL APPL. NO. 14738 OF 2025
PETITIONER ANNEXURES
ANNEXURE 1 TRUE PHOTOCOPY OF THE ORDER DATED
04.07.2025 IN B.A.NO.6366/2025 PASSED
BY THIS HON'BLE COURT
ANNEXURE 2 TRUE PHOTOCOPY OF THE COMMON ORDER
DATED 23.10.2025 IN CRL.MP.NO.3240/2025
PASSED BY THE SPECIAL COURT FOR SC/ST
(POA) ACT & NDPS ACT CASES, MANJERI
