[Cites 20, Cited by 0]
Kerala High Court
Sabu vs State Of Kerala on 25 March, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
B.A.No.1544/2026
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2026:KER:26399
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 25TH DAY OF MARCH 2026 / 4TH CHAITHRA, 1948
BAIL APPL. NO. 1544 OF 2026
CRIME NO.1226/2025 OF Kovalam Police Station,
Thiruvananthapuram
AGAINST THE ORDER DATED 09.03.2026 IN CRLMP NO.9 OF
2026 OF I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM
PETITIONER/1ST ACCUSED:
SABU, AGED 36 YEARS
S/O.SAMBAN, SABU BHAVAN, JRA-67, ANGANVADI LANE,
CHELLAMANGALAM, JANATHA ROAD, CHEMBAZHANTHI,
SREEKARYAM, THIRUVANANTHAPURAM -, PIN - 695017
BY ADVS. SRI.K.SIJU
SMT.ANJANA KANNATH
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER, KOVALAM POLICE STATION,
THIRUVANANTHAPURAM -, PIN - 695527
SRI.M.C.ASHI-SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.03.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.1544/2026
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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 Crime
No.1226/2025 of Kovalam Police Station, Thiruvananthapuram
District. The offences alleged are punishable under Sections 22(c),
25 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
5.10.2025 at about 4.11 am, the applicant along with the accused
No.2 was found in possession and transporting of 196.709 grams of
Methamphetamine found concealed in chappal in a car bearing
registration No.KL-22-U-0609 near Kovalam Junction, for the
purpose of sale in contravention of the NDPS Act.
4. I have heard Sri.Siju Kamalasanan, 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
Constitution of India and Section 47 of the BNSS and inasmuch as
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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 5.10.2025 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
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
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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 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
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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 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
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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 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
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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 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 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
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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 as well as to the relative.
However, in the communication to the relative, there is no
reference to the quantity of the contraband seized from the
applicant. In the mahazar, it is stated that the factum of arrest
was intimated to the applicant as well as to the relative over
phone. However, there is nothing to show that the quantity of the
contraband seized was communicated. Since the grounds of arrest
were not communicated to the applicant and the relative in
accordance with law, the arrest stands vitiated. The Jail
Superintendent, Neyyattinkara Sub Jail, Thiruvananthapuram is
directed to release the applicant forthwith.
The bail application is allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
2026:KER:26399
APPENDIX OF BAIL APPL. NO. 1544 OF 2026
PETITIONER ANNEXURES
Annexure A1 THE COPY OF FIR IN CRIME NO.1226/2025 OF
KOVALAM POLICE STATION,
THIRUVANANTHAPURAM DATED 5.10.2025
Annexure A2 THE COPY OF REMAND REPORT IN CRIME
NO.1226/2025 OF KOVALAM POLICE STATION,
THIRUVANANTHAPURAM DATED 5.10.2025
Annexure A3 THE COPY OF ORDER DATED 7.11.2025 IN
CRL.M.P NO. 4553/2025 ON THE FILE OF
ADDITIONAL SESSIONS COURT-I,
THIRUVANANTHAPURAM
Annexure A4 THE COPY OF ORDER IN B.A NO.5/2026 DATED
12.01.2026 ON THE FILE OF ADDITIONAL
SESSIONS COURT-I, THIRUVANANTHAPURAM
Annexure A5 THE COPY OF ORDER DATED 7.2.2206 IN
CRL.MP NO.1/2026 ON THE FILE OF
ADDITIONAL SESSIONS COURT-I,
THIRUVANANTHAPURAM
Annexure A6 THE COPY OF THE ORDER IN CRL.M.P
NO.9/2026 DATED 9.3.2026 ON THE FILE OF
ADDITIONAL SESSIONS COURT-I,
THIRUVANANTHAPURAM
Annexure A7 THE COPY OF ORDER IN CRL.MP NO.5443/2025
DT. 27.12.2025 OF THE VACATION COURT,
THIRUVANANTHAPURAM
