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Kerala High Court
Shaji C.M vs State Of Kerala on 31 March, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:28950
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 31ST DAY OF MARCH 2026/10TH CHAITHRA, 1948
BAIL APPL. NO. 1819 OF 2026
CRIME NO.122/2025 OF KASABA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 18.06.2025 IN BAIL APPL. NO.7421 OF
2025 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED (IN CUSTODY FROM 16.02.2025):
SHAJI C.M
AGED 31 YEARS, SON OF MAJEED,
CHAMA PARAMBIL, TOG ROAD, THRIKKAKARA NORTH,
ERNAKULAM DISTRICT, PIN - 682021
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM DISTRICT,
PIN - 682031
2 THE STATION HOUSE OFFICER
KASABA POLICE STATION, KOZHIKODE, KOZHIKODE DISTRICT,
PIN - 671123
BAIL APPL. NO. 1819 OF 2026
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BY ADV.
SMT.SREEJA V., SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
31.03.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1819 OF 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.122/2025 of Kasaba Police Station, Kozhikode
District. The offence alleged is punishable under Section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act (for short, 'the NDPS Act').
3. The prosecution case, in short, is that at
about 08.10 hours on 16.02.2025, the applicant along with
the other accused was found in possession of 28.766 kg of
ganja near Milma Booth, on the western side of the New
Bus Stand, Kozhikode in violation of the provisions of the
NDPS Act and thereby committed the offences alleged.
4. I have heard Sri. P.Mohamed Sabah, 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 submitted that the requirement of informing the
arrested person of the grounds of arrest is mandatory
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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 16.02.2025
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
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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
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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 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
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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 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
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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 dealing with the
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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
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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 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.
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(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. On a perusal of the case diary, it is
noticed that separate grounds of arrest were
communicated to the applicant. However, there is no
reference to the quantity of the contraband seized from the
applicant. The grounds of arrest were not intimated to the
relatives of the applicant in writing also. Hence, I hold that
the requirement of Article 22(1) of the Constitution and
Section 47 and 48 of the 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
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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 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
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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
ARK
BAIL APPL. NO. 1819 OF 2026
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APPENDIX OF BAIL APPL. NO. 1819 OF 2026
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO.122/2025 OF KASABA POLICE STATION,
KOZHIKODE DISTRICT
ANNEXURE 2 TRUE COPY OF THE ORDER DATED 18-06-2025 IN
BAIL APPL.7421/2025 ON HIGH COURT
ANNEXURE 3 TRUE COPY OF THE ORDER DATED 01.04.2025 IN
CRL.MP NO.433/2025 OF THE COURT OF THE
SPECIAL JUDGE (NDPS ACT CASES), VATAKARA
