Kerala High Court
Basheer . A.M vs State Of Kerala on 19 February, 2026
Author: Kauser Edappagath
Bench: Kauser Edappagath
2026:KER:15026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 19TH DAY OF FEBRUARY 2026/30TH MAGHA, 1947
BAIL APPL. NO. 817 OF 2026
CRIME NO.28/2025 OF MANANTHAVADY EXCISE RANGE OFFICE, WAYANAD
AGAINST THE ORDER/JUDGMENT IN SC NO.416 OF 2025 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - I & RENT CONTROL APPELLATE
AUTHORITY, KALPETTA
PETITIONER/ACCUSED NO.3:
BASHEER .A.M.
AGED 45 YEARS, S/O ABDUL KHADER . M.
MODEST VILLA, CHEROOR ROAD, RAHMATH NAGAR.
CHENGALA. P.O. KASARGOD, PIN - 671541
BY ADVS.
SHRI. AJMAL V. A.
SMT.A.C.ARFANA
SMT.FATHIMA V.A.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA THROUGH EXCISE RANGE OFFICE,
MANANTHAVADI, WAYANAD DISTRICT, PIN - 670645
BY ADV.
SRI.K.A. NOUSHAD, SR. PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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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.3 in
Crime No.28/2025 of Excise Range Office, Mananthavady,
Wayanad District. The offences alleged are punishable
under Sections 22(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (‘the NDPS Act‘ for
short).
3. The prosecution case, in short, is that on
19.03.2025 at about 07.05 a.m., the accused Nos.1 and 2
were found in possession and transporting 6.987 gms of
MDMA while travelling in the KIA Carens Car bearing
Reg.No.KL-01-CY-6215 at Tholpetty Excise Checkpost,
Thirunelveli VIllage, Mananthavady Taluk, in contravention
of the provisions of the NDPS Act. The Investigating officer,
after taking the custody of the accused Nos.1 and 2 had
seized 285 gms of MDMA from the vehicle. It is alleged that
accused Nos.1 to 3 had purchased 300 gms of MDMA for an
amount of Rs.3 lakhs from Bangalore and out of which 7
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gms of MDMA were concealed in the car and the remaining
285 gms of MDMA were concealed inside the dicky of the
car. Thus, all the accused have committed the
aforementioned offences.
4. I have heard Sri. Ajmal V.A., 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 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 06.12.2025
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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 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
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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
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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 also observed in the said judgment that
although there is no requirement to communicate the
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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
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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. 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
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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 above mentioned binding precedents.
(i) The constitutional mandate of informing the
arrestee the grounds of arrest is mandatory in all offences
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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 order cannot validate unconstitutional arrest.
I went through the case diary. It shows that the
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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 notice served on the relative of
the applicant would also show that the specific grounds for
arrest were communicated to him as well. Therefore, the
applicant is not entitled to be released on bail. The bail
application is, accordingly, dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
ARK
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APPENDIX OF BAIL APPL. NO. 817 OF 2026
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT
IN NDPS CR.NO: 28/2025
ANNEXURE A2 TRUE COPY OF THE ORDER PASSED BY THE LEARNED
SESSION’S JUDGE IN CRL.M.C. NO: 976 OF 2025
ANNEXURE A3 TRUE COPY OF THE ORDER PASSED BY THE LEARNED
SESSION’S JUDGE IN B A. NO: 58 OF 2026
ANNEXURE A4 TRUE COPY OF THE PROSECUTION RELIES UPON A
DOCUMENT STYLED AS NOTICE OF INFORMATION OF
ARREST UNDER SECTION 48 OF THE BHARATIYA
NAGARIK SURAKSHA SANHITA, 2023,
ANNEXURE A5 TRUE COPY OF THE INTERNAL ARREST NOTE
PREPARED BY THE EXCISE OFFICER
ANNEXURE A6 TRUE COPY OF THE SEIZURE MAHAZAR DATED
19.03.2025
ANNEXURE A7 TRUE COPY OF THE SEIZURE MAHAZAR DATED
25.03.2025
