Karnataka High Court
Emeka James Iwoba @ Austin Noso Iwoba vs The State Of Karnataka on 4 March, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 05.02.2026
Pronounced on : 04.03.2026
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.11347 OF 2025
BETWEEN:
1 . EMEKA JAMES IWOBA @
AUSTIN NOSO IWOBA
S/O. NWOBA,
AGED ABOUT 39 YEARS,
ANAM VILLAGE,
NIGERIA COUNTRY,
PRESENTLY R/AT NO. 24/25,
2ND FLOOR, 6TH CROSS,
KOGILU LAYOUT,
BENGALURU - 560 064.
2 . UDERIKE FIDELIS
S/O. OKAFOR,
AGED ABOUT 34 YEARS,
ANAM VILLAGE,
NIGERIA COUNTRY,
PRESENTLY R/AT NO. 24/25,
2ND FLOOR, 6TH CROSS,
KOGILU LAYOUT,
BENGALURU - 560 064.
... PETITIONERS
(BY SRI M.R.BALAKRISHNA, ADVOCATE )
2
AND:
1. THE STATE OF KARNATAKA
BY SAMPIGEHALLI POLICE STATION,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. MR. SHIVAKUMAR BADNUR
POLICE SUB-INSPECTOR,
SAMPIGEHALLI POLICE STATION,
BENGALURU CITY - 560 092.
3. THE CHIEF SUPERINTENDENT
CENTRAL PRISON,
PARAPPANA AGRAHARA,
BENGALURU - 560 100.
4. FOREIGNERS REGIONAL REGISTRATION OFFICE
5TH FLOOR, A BLOCK, TTMC
BMTC BUS STAND BUILDING
K.H.ROAD, THANTHINAGAR
BENGALURU - 560 027.
080-22218183
E-MAIL:[email protected]
REPRESENTED BY ITS DIRECTOR.
(AMENDED VIDE COURT ORDER DATED 30.01.2026)
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1 TO R-3;
SRI H.SHANTHI BHUSHAN, DSGI FOR R-4)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BNSS, 2023, PRAYING TO SET ASIDE THE ORDER OF ARREST
DATED 12.05.2024 BY THE RESPONDENT NO.2 POLICE AND ORDER
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OF REMAND DATED 13.05.2024 PASSED BY THE HON'BLE XLI
A.C.M.M AT BENGALURU IN CR.NO.272/2024 FOR THE ALLEGED
OFFENCES P/U/S 8(c), AND 22(C) OF NDPS ACT U/S 14 OF
FOREIGNERS ACT AND NOW PENDING ON THE FILE OF THE
HON'BLE XXXIV ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPL.JUDGE FOR NDPS CASES AT BENGALURU AND SET AT LIBERTY
FORTHWITH.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.02.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Petitioners, two in number, are citizens of Nigeria and are at
the doors of this Court calling in question an order of remand to
judicial custody on the score that the petitioners were not provided
with the grounds of arrest at the time when they were taken into
custody, particularly in the language known to them.
2. Heard Sri M.R.Balakrishna, learned counsel appearing for
the petitioners; Sri B.N.Jagadeesha, learned Additional State Public
Prosecutor appearing for respondents 1 to 3 and Sri H. Shanthi
4
Bhushan, learned Deputy Solicitor General of India appearing for
respondent No.4.
3. Facts adumbrated are as follows: -
A crime comes to be registered in Crime No.272 of 2024 on
12-05-2024 for offences punishable under Sections 8(c) and 22(c)
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'the Act' for short) and Section 14 of the
Foreigners Act, 1946. The crime is registered by the 2nd respondent
on the credible information received by the defacto complainant
that the accused are selling contraband substances such as MDMA
crystals and cocaine to their customers - software employees and
college students, and are allegedly earning money out of it. The
accused are arrested upon the registration of the subject crime. The
informant and the panchas have recovered the contraband
substance i.e., MDMA crystals weighing 400 grams and cocaine
weighing 100 grams. They are said to have been taken into
custody on 12-05-2024 at 7.00 p.m. and produced before the
concerned Court on 13-05-2024 at about 7.15 p.m. and remanded
5
to judicial custody. The petitioners are accused Nos.1 and 3 in the
subject crime, and are before the Court seeking setting aside of the
arrest and remand on the ground that they were not informed of
grounds of arrest by the law enforcing agency and were not
produced before the learned Magistrate within 24 hours as
contemplated under the Cr.P.C., and the Constitution of India.
SUBMISSIONS:
PETITIONERS':
4. The learned counsel appearing for the petitioners would
vehemently contend that the arrest of the petitioners is illegal on
the ground that no grounds of arrest were even made known to the
petitioners and therefore the petitioners should be set at liberty in
the light of the law laid down by the Apex Court in a plethora of
judgments. The learned counsel further would contend that the
arrest is illegal for yet another reason, that the petitioners were
produced before the learned Magistrate with a delay of 15 minutes
beyond the period of 24 hours as they were arrested on 12-05-
2024 at 7.00 p.m. and produced only at 7.15 p.m. on 13-05-2024.
6
THE STATE:
5. Per contra, the learned Additional State Public Prosecutor
would vehemently refute the submissions contending that grounds
of arrest were in fact furnished to the petitioners and they have
signed on the documents of receipt of grounds of arrest and the
learned Magistrate while remanding the petitioners to judicial
custody has clearly indicated that the petitioners were in receipt of
grounds of arrest and has reasoned as to why the petitioners could
not be produced within 24 hours. Therefore, he would submit that
the petitioners who are alleged of crime under the Act should not be
shown any indulgence, on the ground that grounds of arrest were
inadequately furnished, as they were caught selling MDMA to
college students and 400 grams of MDMA was a huge quantity for
pardoning or setting the petitioners at liberty on the score of
inadequate furnishing of grounds of arrest.
THE DEPUTY SOLICITOR GENERAL OF INDIA:
6. Since the offence alleged is also punishable under the
Foreigners Act, 1946 the Union of India was directed to be
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impleaded as party respondent. The learned Deputy Solicitor
General of India, Sri H.Shanthi Bhushan, has placed documents
before the Court to contend that these petitioners are illegally
staying in this country. They have come on multiple Visas changing
their identity from time to time and therefore, would contend that
Article 22 of the Constitution of India must not be made applicable
to these petitioners who have illegally entered and overstaying in
the country. He would seek to place reliance upon a Model Standard
Operating Procedure ('SOP' for short), which the learned Deputy
Solicitor General of India submits that the Union of India has put in
place a SOP to withdraw prosecutions against foreign nationals of
certain offences and on withdrawal of the prosecution the learned
Deputy Solicitor General of India submits that steps would be taken
to deport them from the country. The learned Deputy Solicitor
General of India submits that the SOP also directs constitution of a
District Level Screening Committee, to examine all cases that would
come within the purview of the SOP. Insofar as the merit of the
matter is concerned, he would contend that Article 22 cannot be in
stricto sensu made applicable to these kinds of petitioners who
have been staying in the country illegally. Though Article 22 is not
8
citizen centric, its application should be restricted owing to the facts
obtaining in each case, particularly, the case at hand.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
CONSIDERATION:
8. The issue, at this juncture, lies in a narrow compass as to
whether the petitioners should be set at liberty on the alleged non-
furnishing of grounds of arrest. The petitioners are admittedly
citizens of a different country and have come to the shores of this
nation on different kinds of Visas. The history of travel of the 1st
petitioner into the shores of the nation, as projected by the learned
DSGI, is as follows:
".... .... ....
Emeka James Iwoba @ Austin James Iwoba (petitioner
No.1): The petitioner No.1 is the holder of two passports under
two different names. The petitioner No.1 has Passport
No.A06559639 under the name of Emeka James Iwoba. The
details of the passport and Visa as per Immigration records are
as follows:
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• Passport No: A06559639 (Valid from 20-04-2015 till
19-04-2020);
• Visa Type: Business Visa issued for Ocean International,
Mumbai.
• Business Visa No:VJ5883813 (issued on 31-07-2015,
expired on 03-10-2015)
• Arrival date in India: Arrived on 25-08-2015 at Integrated
Check Post (ICP)-Delhi.
• Present Status: Overstaying since 04-10-2015.
• Residential Permit/Stay Visa: Nil.
The name Austin Noso Iwoba does not exist in Immigration
records. Petitioner No.1 has impersonated himself as
Augustine Nonso Iwoba holding Passport No. A07320334
(appearing to be valid from 25-04-2021 till 24-04-2026) and
Business Visa No. VJ5324749 (appearing to be valid from
23-07-2023 till 22-07-2024). However, petitioner No.1 has
forged the photograph, date of issuance and date of expiry
under the said Passport and Business Visa. The details of the
Passport and Visa as per immigration records are as follows:
• Passport No: A07320334 (Valid from 25-04-2016 till
24-04-2021);
• Visa Type: Medical Visa issued for medical treatment of
self at Max Super Speciality Hospital, Shalimar Bagh, New
Delhi.
• Medical Visa No: VJ5324749 (issued on 03-07-2016,
expired on 02-10-2016)
• Arrival date in India: Arrived on 29-07-2016 at Integrated
Check Post (ICP) - Delhi.
• Present Status: Overstaying since 03-10-2016.
• Residential Permit/Stay: NIL."
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The history of travel of the 2nd petitioner into the shores of the
nation is as follows:
"Uderike Fidelis (Petitioner No.2): The petitioner No.2 has
forged the date of issuance and date of expiry under the
Passport No.A06015707 and has forged a fake Business Visa
No.V19070776). The details of the Passport and Visa as per
immigration records are as follows:
• Passport No: A006015707 under the name Okafore
Uderike Fidelis (valid from 05-12-2014 till 04.12.2019)
• Visa Type: Business Visa issued for Asha Fashion,
Mumbai.
• Business Visa No:VJ5884768 (Issued on 25-08-2015,
expired on 24-10-2025).
• Arrival date in India: Arrived on 13-09-2015 at Integrated
Check Post (ICP)- Delhi.
• Present Status: Overstaying since 25-10-2015
• Residential Permit/Stay Visa: NIL"
The record reveals a disturbing narrative. The 1st petitioner is found
to be the holder of two passports under two distinct identities, the
particulars whereof stand delineated hereinabove. He initially
entered the country on 31-07-2015 on a business visa granted for a
period of 3 months, which expired on 03-10-2015. On and from 04-
10-2015 he has remained within the territory of this nation without
11
lawful authority. His entry was under the name Austin Noso Iwoba -
a name which according to the Bureau of Immigration, finds no
trace in the official records. It is alleged that the 1st petitioner
simultaneously impersonated another individual, namely,
Augustine Nonso Iwoba by utilising a different passport. The
photographs affixed on the respective passports are stated to have
been morphed, thereby giving rise to suspicion if identity fraud and
deliberate deception.
9. The matter does not end there. The 1st petitioner re-
entered the country on 25-04-2016, this time on a medical visa
purportedly for treatment at Max Super Speciality Hospital,
Shalimar Bagh, New Delhi. That visa too was valid for a period of 3
months and expired on 02-10-2016. On and from 03-10-2016,
even on this account, he stands in continued illegal overstay. Such
is the chequered record of the 1st petitioner. Turning to the 2nd
petitioner, he entered the shores of the nation under the name
Uderike Fidelis. Though his passport was valid for 5 years until 04-
12-2019, the business visa granted to him for purposes connected
with Asha Fashion, Mumbai was issued only for a period of 3
12
months. He entered India on 13-09-2015 and has ever since the
expiry of that visa, continued to remain unlawfully within the
country, for nearly a decade.
10. The allegations, however, transcend mere violations of
immigration law. It is asserted that both petitioners were engaged
in illicit sale of narcotic substances at various locations within the
city, including the students of a college. More gravely still, they
were apprehended allegedly redhanded with the recovery of 400
grams of MDMA crystals and 100 grams of cocaine from their
possession, quantities which unmistakably fall within the realm of
serious narcotic offences. Thus, the petitioners stand accused
not only of prolonged illegal overstay and identity
manipulation, but also of trafficking in prohibited substances
of considerable magnitude. The facts, on their face, portray
conduct that strikes at the very fabric of public order and
statutory discipline.
11. On these facts, it becomes germane to examine the
constitutional right of a person for furnishing of grounds of arrest.
13
It becomes necessary to notice Article 22(1) of the Constitution of
India. It reads as follows:
"22. Protection against arrest and detention in
certain cases.--(1) No person who is arrested shall be
detained in custody without being informed, as soon as may be,
of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his
choice."
Article 22(1) of the Constitution of India mandates furnishing of
grounds of arrest to any accused. The issue need not detain this
Court for long or delve deep into the matter, except noticing
plethora of judgments rendered by the Apex Court on the issue.
JUDICIAL LANDSCAPE-ARTICLE 22(1)-GROUND OF ARREST:
12.1. The Apex Court in PANKAJ BANSAL v. UNION OF
INDIA1, holds as follows:
".... .... ....
38. In this regard, we may note that Article 22(1) of
the Constitution provides, inter alia, 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. This being the fundamental right guaranteed to
the arrested person, the mode of conveying information
of the grounds of arrest must necessarily be meaningful
1
(2024) 7 SCC 576
14
so as to serve the intended purpose. It may be noted that
Section 45 PMLA enables the person arrested under Section 19
thereof to seek release on bail but it postulates that unless the
twin conditions prescribed thereunder are satisfied, such a
person would not be entitled to grant of bail. The twin
conditions set out in the provision are that, firstly, the
court must be satisfied, after giving an opportunity to the
Public Prosecutor to oppose the application for release,
that there are reasonable grounds to believe that the
arrested person is not guilty of the offence and, secondly,
that he is not likely to commit any offence while on bail.
To meet this requirement, it would be essential for the
arrested person to be aware of the grounds on which the
authorised officer arrested him/her under Section 19 and
the basis for the officer's "reason to believe" that he/she
is guilty of an offence punishable under the 2002 Act. It
is only if the arrested person has knowledge of these
facts that he/she would be in a position to plead and
prove before the Special Court that there are grounds to
believe that he/she is not guilty of such offence, so as to
avail the relief of bail. Therefore, communication of the
grounds of arrest, as mandated by Article 22(1) of the
Constitution and Section 19 PMLA, is meant to serve this
higher purpose and must be given due importance.
39. We may also note that the language of Section 19
PMLA puts it beyond doubt that the authorised officer has to
record in writing the reasons for forming the belief that the
person proposed to be arrested is guilty of an offence
punishable under the 2002 Act. Section 19(2) requires the
authorised officer to forward a copy of the arrest order along
with the material in his possession, referred to in Section 19(1),
to the adjudicating authority in a sealed envelope. Though it is
not necessary for the arrested person to be supplied with
all the material that is forwarded to the adjudicating
authority under Section 19(2), he/she has a
constitutional and statutory right to be "informed" of the
grounds of arrest, which are compulsorily recorded in
writing by the authorised officer in keeping with the
mandate of Section 19(1) PMLA. As already noted
hereinbefore, it seems that the mode of informing this to the
persons arrested is left to the option of ED's authorised officers
in different parts of the country i.e. to either furnish such
15
grounds of arrest in writing or to allow such grounds to be read
by the arrested person or be read over and explained to such
person.
.... .... ....
42. That being so, there is no valid reason as to why a
copy of such written grounds of arrest should not be furnished
to the arrested person as a matter of course and without
exception. There are two primary reasons as to why this
would be the advisable course of action to be followed as
a matter of principle. Firstly, in the event such grounds of
arrest are orally read out to the arrested person or read
by such person with nothing further and this fact is
disputed in a given case, it may boil down to the word of
the arrested person against the word of the authorised
officer as to whether or not there is due and proper
compliance in this regard. In the case on hand, that is the
situation insofar as Basant Bansal is concerned. Though
ED claims that witnesses were present and certified that
the grounds of arrest were read out and explained to him
in Hindi, that is neither here nor there as he did not sign
the document. Non-compliance in this regard would entail
release of the arrested person straightaway, as held in V.
Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51 :
(2024) 2 SCC (Cri) 1] . Such a precarious situation is
easily avoided and the consequence thereof can be
obviated very simply by furnishing the written grounds of
arrest, as recorded by the authorised officer in terms of
Section 19(1) PMLA, to the arrested person under due
acknowledgment, instead of leaving it to the debatable
ipse dixit of the authorised officer.
43. The second reason as to why this would be the
proper course to adopt is the constitutional objective underlying
such information being given to the arrested person.
Conveyance of this information is not only to apprise the
arrested person of why he/she is being arrested but also
to enable such person to seek legal counsel and,
thereafter, present a case before the court under Section
45 to seek release on bail, if he/she so chooses. In this
regard, the grounds of arrest in V. Senthil Balaji [V. Senthil
Balaji v. State, (2024) 3 SCC 51 : (2024) 2 SCC (Cri) 1] are
16
placed on record and we find that the same run into as many as
six pages. The grounds of arrest recorded in the case on
hand in relation to Pankaj Bansal and Basant Bansal have
not been produced before this Court, but it was
contended that they were produced at the time of
remand. However, as already noted earlier, this did not
serve the intended purpose. Further, in the event their
grounds of arrest were equally voluminous, it would be
well-nigh impossible for either Pankaj Bansal or Basant
Bansal to record and remember all that they had read or
heard being read out for future recall so as to avail legal
remedies. More so, as a person who has just been
arrested would not be in a calm and collected frame of
mind and may be utterly incapable of remembering the
contents of the grounds of arrest read by or read out to
him/her. The very purpose of this constitutional and
statutory protection would be rendered nugatory by
permitting the authorities concerned to merely read out
or permit reading of the grounds of arrest, irrespective of
their length and detail, and claim due compliance with
the constitutional requirement under Article 22(1) and
the statutory mandate under Section 19(1) PMLA.
44. We may also note that the grounds of arrest recorded
by the authorised officer, in terms of Section 19(1) PMLA, would
be personal to the person who is arrested and there should,
ordinarily, be no risk of sensitive material being divulged
therefrom, compromising the sanctity and integrity of the
investigation. In the event any such sensitive material finds
mention in such grounds of arrest recorded by the authorised
officer, it would always be open to him to redact such sensitive
portions in the document and furnish the edited copy of the
grounds of arrest to the arrested person, so as to safeguard the
sanctity of the investigation.
45. On the above analysis, to give true meaning and
purpose to the constitutional and the statutory mandate of
Section 19(1) PMLA of informing the arrested person of the
grounds of arrest, we hold that it would be necessary,
henceforth, that a copy of such written grounds of arrest is
furnished to the arrested person as a matter of course and
without exception. The decisions of the Delhi High Court in Moin
Akhtar Qureshi [Moin Akhtar Qureshi v. Union of India, 2017
17
SCC OnLine Del 12108] and the Bombay High Court in Chhagan
Chandrakant Bhujbal [Chhagan Chandrakant Bhujbal v. Union of
India, 2016 SCC OnLine Bom 9938: (2017) 1 AIR Bom R (Cri)
929], which hold to the contrary, do not lay down the correct
law. In the case on hand, the admitted position is that
ED's investigating officer merely read out or permitted
reading of the grounds of arrest of the appellants and left
it at that, which is also disputed by the appellants. As this
form of communication is not found to be adequate to
fulfil compliance with the mandate of Article 22(1) of the
Constitution and Section 19(1) PMLA, we have no
hesitation in holding that their arrest was not in keeping
with the provisions of Section 19(1) PMLA. Further, as
already noted supra, the clandestine conduct of ED in
proceeding against the appellants, by recording the second ECIR
immediately after they secured interim protection in relation to
the first ECIR, does not commend acceptance as it reeks of
arbitrary exercise of power. In effect, the arrest of the
appellants and, in consequence, their remand to the custody of
ED and, thereafter, to judicial custody, cannot be sustained."
12.2. In PRABIR PURKAYASTHA v. STATE (NCT OF
DELHI)2, the Apex Court holds as follows:
".... .... ....
28. The language used in Article 22(1) and Article
22(5) of the Constitution of India regarding the
communication of the grounds is exactly the identical.
Neither of the constitutional provisions require that the
"grounds" of "arrest" or "detention", as the case may be,
must be communicated in writing. Thus, interpretation to
this important facet of the fundamental right as made by
the Constitution Bench while examining the scope of
Article 22(5) of the Constitution of India would ipso
facto apply to Article 22(1) of the Constitution of India
2
(2024) 8 SCC 254
18
insofar as the requirement to communicate the grounds
of arrest is concerned.
29. Hence, we have no hesitation in reiterating that
the requirement to communicate the grounds of arrest or
the grounds of detention in writing to a person arrested
in connection with an offence or a person placed under
preventive detention as provided under Articles 22(1)
and 22(5) of the Constitution of India is sacrosanct and
cannot be breached under any situation. Non-compliance of
this constitutional requirement and statutory mandate would
lead to the custody or the detention being rendered illegal, as
the case may be.
.... .... ....
48. It may be reiterated at the cost of repetition that
there is a significant difference in the phrase "reasons for
arrest" and "grounds of arrest". The "reasons for arrest" as
indicated in the arrest memo are purely formal
parameters viz. to prevent the accused person from
committing any further offence; for proper investigation
of the offence; to prevent the accused person from
causing the evidence of the offence to disappear or
tampering with such evidence in any manner; to prevent
the arrested person for making inducement, threat or
promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to
the court or to the investigating officer. These reasons
would commonly apply to any person arrested on charge
of a crime whereas the "grounds of arrest" would be
required to contain all such details in hand of the
investigating officer which necessitated the arrest of the
accused. Simultaneously, the grounds of arrest informed
in writing must convey to the arrested accused all basic
facts on which he was being arrested so as to provide him
an opportunity of defending himself against custodial
remand and to seek bail. Thus, the "grounds of arrest"
would invariably be personal to the accused and cannot
be equated with the "reasons of arrest" which are
general in nature."
19
12.3. The Apex Court in VIHAAN KUMAR v. STATE OF
HARYANA3, holds as follows:
".... .... ....
18. Therefore, as far as Article 22(1) is concerned,
compliance can be made by communicating sufficient
knowledge of the basic facts constituting the grounds of
arrest to the person arrested. The grounds should be
effectively and fully communicated to the arrestee in the
manner in which he will fully understand the same.
Therefore, it follows that the grounds of arrest must be
informed in a language which the arrestee understands.
That is how, in Pankaj Bansal [Pankaj Bansal v. Union of India,
(2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] , this Court held
that the mode of conveying the grounds of arrest must
necessarily be meaningful so as to serve the intended purpose.
However, under Article 22(1), there is no requirement of
communicating the grounds of arrest in writing. Article 22(1)
also incorporates the right of every person arrested to consult
an advocate of his choice and the right to be defended by an
advocate. If the grounds of arrest are not communicated
to the arrestee, as soon as may be, he will not be able to
effectively exercise the right to consult an advocate. This
requirement incorporated in Article 22(1) also ensures
that the grounds for arresting the person without a
warrant exist. Once a person is arrested, his right to
liberty under Article 21 is curtailed. When such an
important fundamental right is curtailed, it is necessary
that the person concerned must understand on what
grounds he has been arrested. That is why the mode of
conveying information of the grounds must be
meaningful so as to serve the objects stated above.
19. Thus, the requirement of informing the person
arrested of the grounds of arrest is not a formality but a
mandatory constitutional requirement. Article 22 is
included in Part III of the Constitution under the heading
of Fundamental Rights. Thus, it is the fundamental right
3
(2025) 5 SCC 799
20
of every person arrested and detained in custody to be
informed of the grounds of arrest as soon as possible. If
the grounds of arrest are not informed as soon as may be
after the arrest, it would amount to a violation of the
fundamental right of the arrestee guaranteed under
Article 22(1). It will also amount to depriving the
arrestee of his liberty. The reason is that, as provided in
Article 21, no person can be deprived of his liberty except
in accordance with the procedure established by law. The
procedure established by law also includes what is
provided in Article 22(1). Therefore, when a person is
arrested without a warrant, and the grounds of arrest are
not informed to him, as soon as may be, after the arrest,
it will amount to a violation of his fundamental right
guaranteed under Article 21 as well. In a given case, if
the mandate of Article 22 is not followed while arresting
a person or after arresting a person, it will also violate
fundamental right to liberty guaranteed under Article 21,
and the arrest will be rendered illegal. On the failure to
comply with the requirement of informing grounds of
arrest as soon as may be after the arrest, the arrest is
vitiated. Once the arrest is held to be vitiated, the person
arrested cannot remain in custody even for a second.
20. We have already referred to what is held in
paras 42 and 43 of the decision in Pankaj Bansal [Pankaj
Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC
(Cri) 450] . This Court has suggested that the proper and
ideal course of communicating the grounds of arrest is to
provide grounds of arrest in writing. Obviously, before a
police officer communicates the grounds of arrest, the grounds
of arrest have to be formulated. Therefore, there is no harm if
the grounds of arrest are communicated in writing. Although
there is no requirement to communicate the grounds of
arrest in writing, what is stated in paras 42 and 43 of the
decision in Pankaj Bansal [Pankaj Bansal v. Union of
India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] are
suggestions that merit consideration. We are aware that in
every case, it may not be practicable to implement what is
suggested. If the course, as suggested, is followed, the
controversy about the non-compliance will not arise at all. The
police have to balance the rights of a person arrested with the
21
interests of the society. Therefore, the police should always
scrupulously comply with the requirements of Article 22.
... ... ...
23. In the present case, the first respondent relied upon
an entry in the case diary allegedly made at 6.10 p.m. on 10-6-
2024, which records that the appellant was arrested after
informing him of the grounds of arrest. For the reasons which
will follow hereafter, we are rejecting the argument made by the
first respondent. If the police want to prove communication
of the grounds of arrest only based on a diary entry, it is
necessary to incorporate those grounds of arrest in the
diary entry or any other document. The grounds of arrest
must exist before the same are informed. Therefore, in a
given case, even assuming that the case of the police
regarding requirements of Article 22(1) of the
Constitution is to be accepted based on an entry in the
case diary, there must be a contemporaneous record,
which records what the grounds of arrest were. When an
arrestee pleads before a court that grounds of arrest
were not communicated, the burden to prove the
compliance of Article 22(1) is on the police.
... ... ...
Conclusions
26. Therefore, we conclude:
26.1. The requirement of informing a person
arrested of grounds of arrest is a mandatory requirement
of Article 22(1);
26.2. The information of the grounds of arrest must
be provided to the arrested person in such a manner that
sufficient knowledge of the basic facts constituting the
grounds is imparted and communicated to the arrested
person effectively in the language which he understands.
The mode and method of communication must be such
that the object of the constitutional safeguard is
achieved;
22
26.3. When arrested accused alleges non-
compliance with the requirements of Article 22(1), the
burden will always be on the investigating officer/agency
to prove compliance with the requirements of Article
22(1);
26.4. Non-compliance with Article 22(1) will be a
violation of the fundamental rights of the accused
guaranteed by the said Article. Moreover, it will amount
to a violation of the right to personal liberty guaranteed
by Article 21 of the Constitution. Therefore, non-
compliance with the requirements of Article 22(1)
vitiates the arrest of the accused. Hence, further orders
passed by a criminal court of remand are also vitiated.
Needless to add that it will not vitiate the investigation,
charge-sheet and trial. But, at the same time, filing of
charge-sheet will not validate a breach of constitutional
mandate under Article 22(1);
26.5. When an arrested person is produced before a
Judicial Magistrate for remand, it is the duty of the
Magistrate to ascertain whether compliance with Article
22(1) and other mandatory safeguards has been made;
and
26.6. When a violation of Article 22(1) is
established, it is the duty of the court to forthwith order
the release of the accused. That will be a ground to grant
bail even if statutory restrictions on the grant of bail
exist. The statutory restrictions do not affect the power
of the court to grant bail when the violation of Articles 21
and 22 of the Constitution is established.
... ... ...
42. The purpose of inserting Section 50-ACrPC,
making it obligatory on the person making arrest to
inform about the arrest to the friends, relatives or
persons nominated by the arrested person, is to ensure
that they would be able to take immediate and prompt
actions to secure the release of the arrested person as
permissible under the law. The arrested person, because
of his detention, may not have immediate and easy
23
access to the legal process for securing his release, which
would otherwise be available to the friends, relatives and
such nominated persons by way of engaging lawyers,
briefing them to secure release of the detained person on
bail at the earliest. Therefore, the purpose of
communicating the grounds of arrest to the detenue, and
in addition to his relatives as mentioned above is not
merely a formality but to enable the detained person to
know the reasons for his arrest but also to provide the
necessary opportunity to him through his relatives,
friends or nominated persons to secure his release at the
earliest possible opportunity for actualising the
fundamental right to liberty and life as guaranteed under
Article 21 of the Constitution.Hence, the requirement of
communicating the grounds of arrest in writing is not
only to the arrested person, but also to the friends,
relatives or such other person as may be disclosed or
nominated by the arrested person, so as to make the
mandate of Article 22(1) of the Constitution meaningful
and effective failing which, such arrest may be rendered
illegal."
12.4. The Apex Court in KASIREDDY UPENDER REDDY v.
STATE OF ANDHRA PRADESH4, holds as follows:
".... .... ....
18. Thus, the following principles of law could be said to
have been laid down, rather very well explained, in Vihaan
Kumar (supra):
a) The requirement of informing the person
arrested of the grounds of arrest is not a
formality but a mandatory constitutional
condition.
b) Once a person is arrested, his right to liberty
under Article 21 is curtailed. When such an
4
2025 SCC OnLine SC 1228
24
important fundamental right is curtailed, it is
necessary that the person concerned must
understand on what grounds he has been
arrested.
c) The mode of conveying the information of the
grounds of arrest must be meaningful so as to
serve the true object underlying Article 22(1).
d) If the grounds of arrest are not informed as soon
as may be after the arrest, it would amount to a
violation of the fundamental right of the arrestee
guaranteed under Article 22(1).
e) On the failure to comply with the requirement of
informing the grounds of arrest as soon as may
be after the arrest, the arrest would stand
vitiated. Once the arrest is held to be vitiated,
the person arrested cannot remain in custody
even for a second.
f) If the police want to prove communication of the
grounds of arrest only based on a diary entry, it
is necessary to incorporate those grounds of
arrest in the diary entry or any other document.
The grounds of arrest must exist before the
same are informed.
g) When an arrestee pleads before a court that the
grounds of arrest were not communicated, the
burden to prove the compliance of Article 22(1)
is on the police authorities.
h) The grounds of arrest should not only be
provided to the arrestee but also to his family
members and relatives so that necessary
arrangements are made to secure the release of
the person arrested at the earliest possible
opportunity so as to make the mandate of Article
22(1) meaningful and effective, failing which,
such arrest may be rendered illegal.
25
19. We must clarify one important aspect of Vihaan
Kumar (supra). In Vihaan Kumar (supra) the case was that
there was an absolute failure on the part of the police to
provide the grounds of arrest. In Vihaan Kumar (supra)
reliance was placed upon the entry in the case diary
which recorded that the appellant therein was arrested
after informing him of the grounds of arrest. In the case
at hand, it is not in dispute that the grounds of arrest
were supplied to the arrestee, however, the case put up is
that those grounds are not meaningful and are bereft of
necessary essential information.
20. In this appeal our endeavor would be to consider
whether the grounds of arrest supplied to the appellant's son at
the time of his arrest could be said to be meaningful and
sufficient enough to give a broad idea to the person arrested of
the accusations levelled and as to why he was being taken into
custody.
21. Having looked into the grounds of arrest which were
supplied to the son of the appellant at the time of his arrest, it is
difficult for us to take the view that the grounds do not make
any sense or are not meaningful or are just an eyewash."
12.5. In STATE OF KARNATAKA v. SRI DARSHAN5, the
Apex Court holds as follows:
".... .... ....
20.1. Delay in furnishing the grounds of arrest
cannot, by itself, constitute a valid ground for grant of
bail.
20.1.1. The learned counsel for the respondents -
accused contended that the arrest was illegal as the grounds of
arrest were not furnished immediately in writing, thereby
violating Article 22 (1) of the Constitution and Section 50 Cr.
5
2025 SCC OnLine SC 1702
26
P.C. (now Section 47 of the BharatiyaNagarik Suraksha
Sanhita). This submission, however, is devoid of merit.
20.1.2. Article 22(1) of the Constitution mandates 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, nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice". Similarly,
Section 50 (1) Cr. P.C. requires that "every police officer or
other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.
20.1.3. The constitutional and statutory framework
thus mandates that the arrested person must be informed
of the grounds of arrest - but neither provision prescribes
a specific form or insists upon written communication in
every case. Judicial precedents have clarified that
substantial compliance with these requirements is
sufficient, unless demonstrable prejudice is shown.
20.1.4. In Vihaan Kumar v. State of Haryana22, it
was reiterated that Article 22(1) is satisfied if the
accused is made aware of the arrest grounds in
substance, even if not conveyed in writing. Similarly,
in KasireddyUpender Reddy v. State of Andhra Pradesh, it
was observed that when arrest is made pursuant a
warrant, reading out the warrant amounts to sufficient
compliance. Both these post- Pankaj Bansal decisions
clarify that written, individualised grounds are not an
inflexible requirement in all circumstances.
20.1.5. While Section 50 Cr. P.C. is mandatory, the
consistent judicial approach has been to adopt a
prejudice-oriented test when examining alleged
procedural lapses. The mere absence of written grounds
does not ipso facto render the arrest illegal, unless it
results in demonstrable prejudice or denial of a fair
opportunity to defend.
27
20.1.6. The High Court, however, relied heavily on the
alleged procedural lapse as a determinative factor while
overlooking the gravity of the offence under
Section 302 IPC and the existence of a prima facie case. It
noted, inter alia, that there was no mention in the remand
orders about service of memo of grounds of arrest (para 45);
the arrest memos were allegedly template-based and not
personalised (para 50); and eyewitnesses had not stated that
they were present at the time of arrest or had signed the
memos (para 48). Relying on Pankaj Bansal v. Union of
India and PrabirPurkayastha v. State (NCT of Delhi) (supra), it
concluded (paras 43, 49 - 50) that from 03.10.2023 onwards,
failure to serve detailed, written, and individualised grounds of
arrest immediately after arrest was a violation entitling the
accused to bail.
20.1.7. In the present case, the arrest memos and
remand records clearly reflect that the respondents were
aware of the reasons for their arrest. They were legally
represented from the outset and applied for bail shortly
after arrest, evidencing an immediate and informed
understanding of the accusations. No material has been
placed on record to establish that any prejudice was
caused due to the alleged procedural lapse. In the absence
of demonstrable prejudice, such as irregularity is, at best, a
curable defect and cannot, by itself, warrant release on bail. As
reiterated above, the High Court treated it as a determinative
factor while overlooking the gravity of the charge under
Section 302 IPC and the existence of a prima facie case. Its
reliance on Pankaj Bansal and Prabir Purkayastha is misplaced,
as those decisions turned on materially different facts and
statutory contexts. The approach adopted here is inconsistent
with the settled principle that procedural lapses in furnishing
grounds of arrest, absent prejudice, do not ipso facto render
custody illegal or entitle the accused to bail."
28
12.6. In MIHIR RAJESH SHAH v. STATE OF
MAHARASHTRA6, the Apex Court holds as follows:
".... .... ....
37. The mandate contained in Article 22(1) of the
Constitution of India is unambiguous and clear in nature,
it provides that the arrested person must be informed of
the grounds of arrest as soon as they can be. It further
provides that the arrested person has the right to defend
himself by consulting a legal practitioner of his choice.
This constitutional mandate has been effectuated by the
legislature in Section 50CrPC (now Section 47 of BNSS
2023) which provides that an arrested person shall be
forthwith communicated with the grounds of his arrest.
38. The objective enshrined in Article 22(1) of the
Constitution of India for furnishing grounds of arrest
stems from the fundamental principle of providing
opportunity to a person to allow him to defend himself
from the accusations that are levelled against him leading
to his arrest. The salutary purpose of informing the
grounds of arrest is to enable the person to understand
the basis of his arrest and engage legal counsel to
challenge his arrest, remand or seek bail and/or avail of
any other remedy as may be available to him/her under
law.
... ... ...
44. These above discussed principles embody the
manifestation of the constitutional safeguard sought to
be achieved in Article 22 of the Constitution of India
which is that the arrested person must be well equipped
with the information not only about his arrest but the
reasons and grounds thereof prior to his production
before the Magistrate so as to enable him to effectively
defend himself and oppose the police and judicial custody
and even press for bail. The obligation to inform the
grounds of arrest to the arrestee is thus, not just a mere
procedural formality, instead it flows from the
fundamental right of personal liberty which sets the
6
2025 SCC OnLine SC 2356
29
further course for protection from the oppressive
restrictions imposed upon the free movement in the
society of an arrestee during remand.
45. A plain reading of Article 22(1) of the
Constitution of India shows that the intent of the
Constitution makers while incorporating the provisions
was not to create any exceptional circumstances, instead
it reads as "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 casts a mandatory
unexceptional duty on the State to provide the arrested
person with the grounds of such arrest with the objective
to enable that person to be able to defend himself by
consulting a legal practitioner of his choice. This mandate
of Article 22(1) is notwithstanding any exception. This
Court has made it explicit that the constitutional
obligation under Article 22 is not statute-specific and it is
grounded in fundamental right of life and personal liberty
under Article 21 of the Constitution of India, therefore
making it applicable to all offences including those under
the Penal Code, 1860 (now BNS 2023).
46. The requirement of informing the arrested
person the grounds of arrest, in the light of and under
Article 22(1) of the Constitution of India, is not a mere
formality but a mandatory binding constitutional
safeguard which has been included in Part III of the
Constitution under the head of Fundamental Rights. Thus,
if a person is not informed of the grounds of his arrest as
soon as maybe, it would amount to the violation of his
fundamental rights thereby curtailing his right to life and
personal liberty under Article 21 of the Constitution of
India, rendering the arrest illegal.
... ... ...
66. In conclusion, it is held that:
66.1. The constitutional mandate of informing the
arrestee the grounds of arrest is mandatory in all
offences under all statutes including offences under IPC,
1860 (now BNS 2023);
30
66.2. The grounds of arrest must be communicated
in writing to the arrestee in the language he/she
understands;
66.3. In case(s) where, the arresting officer/person
is unable to communicate the grounds of arrest in writing
on or 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
production of the arrestee for remand proceedings before
the Magistrate.
66.4. In case of non-compliance of the above, the
arrest and subsequent remand would be rendered illegal
and the person will be at liberty to be set free.
... ... ...
68. We are cognizant that there existed no
consistent or binding requirement mandating written
communication of the grounds of arrest for all the
offences. Holding as above, in our view, would ensure
implementation of the constitutional rights provided to an
arrestee as engrafted under Article 22 of the Constitution
of India in an effective manner. Such clarity on obligation
would avoid uncertainty in the administration of criminal justice.
The ends of fairness and legal discipline therefore
demand that this procedure as affirmed above shall
govern arrests henceforth."
(Emphasis supplied in each instance)
The elucidation of the Apex Court is unambiguous. Any
individual arrested in connection with a penal offence must
be informed of the grounds of such arrest. This requirement
is not an empty formality, it is a constitutional imperative.
The failure to communicate grounds of arrest, whether to
31
the accused or in appropriate circumstances to his or her
relative, would amount to a violation of fundamental
safeguards guaranteed under the Constitution. Thus,
whether the arrest is effected under the provisions of the
BNS or any other penal statute that authorises custody, the
obligation to furnish grounds of arrest remains inescapable.
It is a safeguard that travels with the power of arrest and operates
as a constitutional check upon Executive Authority.
13. The question that then arises for consideration is,
whether a foreign national, standing on the soil of this
country, is entitled to protection afforded by Article 22 of the
Constitution of India. Chapter III of the Constitution which
enshrines fundamental rights exhibits a carefully structured
duality in its application. Certain rights are conferred to
citizens, while others extend to all persons. The distinction is
deliberate and constitutionally significant. Article 19 which
guarantees six cherished freedoms, is expressly restricted to
citizens. It is citizen-centric in its design and operation.
Article 22 however is not so limited. It employs the
32
expression 'no person', thereby expanding its protective
umbrella beyond the confines of citizenship. The term person
is widest amplitude. It is inclusive and unqualified. It
encompasses citizens and non-citizens alike and within its
sweep falls even a foreign national. Therefore, the
protection against arrest and detention embodied under
Article 22 is person-centric, not citizen-centric. The
constitutional guarantee does not evaporate at the border
nor does it diminish by reason of nationality, except an enemy
alien as defined under Article 22(3)(a) which expressly makes the
provision inapplicable to an enemy alien, otherwise, a foreigner
within the territory of India though, subject to the regulatory
regime governing entry and stay is nevertheless, entitled to the
procedural safeguards mandated by Article 22 when arrested for a
penal offence.
THE OFFENCES:
14. The offences alleged are the ones punishable under the
Act are undoubtedly serious. It becomes germane to notice the gist
33
of the offence, as found in column No.10 of the FIR. It reads as
follows:
" ೕ, ಎಂ.ಎ .ಸುಬ ಹ ಣ ಾ ೕ ಇ ೆಕ , ಾದಕ ದ ವ "ಗ ಹ ದಳ %%&
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ಾದಕ ವಸುTಗPಾದ ಎಂ.*.ಎಂ.ಎ, S ಸ ಮತುT GೊGೇ ಅನುZ ಪ9ಚಯ¸ÀÜ I-ಾSಗ12ೆ, GಾKೇa
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ಆ-ೋCಗPಾದ 1.EMEKA JAMES IWOBA @ AUSTIN NOSO IWOBA S/o
NWOBA, 39 Years, ANAM Village, Nigeria Country, Local Address:
#24/25, 2nd floor, 6th cross, Kogilu Layout, Bengaluru-560064,
Phone: 7085986284, +27834200919
2.SMART S/O EREMHEN, 34 Years, EDO State, Nigeria Country,
Local Address: #4, 1st floor, MS Ramaiah Layout, Avalahalli,
Singanayakanahalli Post, Yalahanka, Bengaluru-560064, Ph No:
7005820232, 8099143297
3.UDERIKE, FIDELIS s/o OKAFOR, 34 Yrs, ANAM Village, Nigeria
Country, Local Address: #24/25, 2nd floor, 6th cross, Kogilu Layout,
Bengaluru-560064, Phone: 9901322653, (8798945400 Whatsapp)
ಎಂಬುವರ /ಾಸದ ಮ0ೆಯ fೕKೆ :ಾ1 ಾ*ದು;, ನಂತರ ಇವರುಗ12ೆ ಾದಕವಸುTಗಳ ಬ2ೆ3 Okಾರ
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34
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ವಶದ 6ಟು Gೊಂಡು ಪ9ಚಯ¸ÀÜ I-ಾSಗ12ೆ ಾ-ಾಟ ಾಡುdಾT ಅಕ ಮ Kಾಭಗ1ಸು<Tದುದ;ಲ6:ೇ
ಾ ಾpಕ ಾ ಸ•‚ hಾಳU ಾಡುವ PÀÈvÀåzÀ°è vÉÆqÀVzÀÄÝzÀjAzÀ DgÉÆæUÀ¼ÁzÀ 1) EMEKA
JAMES IWOBA @ AUSTIN NOSO IWOBA S/O NWOBA, 39 years 2)
SMART S/O EREMHEN, 34 Years 3) UDERIKE FIDELIS s/o OKAFOR, 34
Yrs ತKೆಮ-ೆ%Gೊಂ*ರುವ 4) CHIEF hಾಗೂ ಇತರರು ಇವರುಗಳ Oರುದƒ 8(ಅ), 22 (ಅ)
ಎ .*.C.ಎ . Gಾ„;-1985 ಕಲಂ 14 ಅ... †ಾ90ಾ9ನ c ಆ~ 9ೕdಾ ಪ ಕರಣ :ಾಖ % ತ"‡ೆ
Gೈ2ೊಳDಲು Gೋ9ರುವ ವರ+ ದೂರು."
On receipt of credible information, the petitioners were suspected of
possession of MDMA and cocaine. They were intercepted and items
were seized. The seized items are as follows:
• "300 gms of MDMA white crystals were seized from A1
• 100 gms MDMA white crystals were seized from A2
• 100 gms of cocaine was seized from A3
• One realme phone and one silver colour packet electronic
pocket weighing machine were seized from A1
35
• One black colour oppo mobile phone was seized from A3
• One bundle plastic packing covers and green colour cello
tape was also seized.
Total value of the items seized was ₹50,00,000/-"
The total value of the seized items is ₹50,00,000/. They are in
broad spectrum high potency drugs. The petitioners were arrested
at 7.00 p.m. on 12-05-2024 and kept in custody as obtaining under
the remand application. FIR is registered against three persons for
offences punishable under Section 8(c) and 22(c) of the Act, and
the offence under the Foreigners Act, 1946. The FIR and remand
application indicate that they were arrested at 7.00 p.m. on 12-05-
2024. They were produced before the learned Magistrate at 7.15
p.m. on 13-05-2024. Therefore, there is a delay of 15 minutes in
production.
15. The petitioners were apprehended and placed in police
custody and the grounds of arrest were duly communicated to them
as reflected in the remand application, but was not in the language
known to the petitioners. The remand application reads as follows:
""/ೇದ0ೆ:-
36
Oಷಯ:- ಆ-ೋCಗPಾದ A1. EMEKA JAMES IWOBA @ AUSTIN NOSO
IWOBA S/o NWOBA, 39 Years, ANAM Village, Nigeria
Country, Local Address: #24/25, 2nd floor, 6th cross,
Kogilu Layout, Bengaluru-560064, Phone: 7085986284,
+27834200919
2. EREMHEN SMART S/O EREMHEN, 34 Years, EDO State,
Nigeria Country, Local Address: #4, 1st floor, MS
Ratnaiah Layout, Avalahalli, Singanayakanahalli Post,
Yalahanka, Bengaluru-560064, Ph No: 7005820232,
8099143297
3. UDERIKE FIDELIS s/o OKAFOR, 34 Yrs, ANAM Village,
Nigeria Country, Local Address: #24/25, 2nd floor, 6th
cross, Kogilu Layout, Bengaluru-560064, Phone:
9901322653,
( ಎ1,ಎ2,ಎ3. ರವರನುZ 0ಾ nಾಂಗ ಬಂಧನGೆj ಒಳಪ*ಸಲು Gೋ9 ಮನO. )
ಉKೆ6ೕಖ:- ಸಂC2ೆಹ1D ೕ EಾFೆಯ qಸಂ.:272/2024 ಕಲಂ: 8(%), 22(%) ಎ
*Cಎ ಆ~ -1985 & 14 ಆ... †ಾ9ನ c ಆ~ .
*-*-*-*
fೕಲjಂಡ Oಷಯ ಮತುT ಉKೆ6ೕಖದ ಸಂಬಂಧ/ಾI ಾನ 0ಾ nಾಲಯದ 6 "/ೇ+%
GೊಳUDವ\:ೇ0ೆಂದ-ೆ, 'ೆಂಗಳ(ರುನಗರ, Gೇಂದ ಅಪ-ಾಧ Oeಾಗ, ಾದಕ ದ ವ "ಗ ಹ ದಳದ
ೕ ಇ ೆಕ ಎಂ.ಎ . ಸುಬ ಹ ಣ ಾ ರವರು EಾFೆ2ೆ hಾಜ-ಾI "ೕ*ದ ದೂ9ನ
ಾ-ಾಂಶ/ೇ0ೆಂದ-ೆ, +0ಾಂಕ: 15-05-2024 ರಂದು 'ೆ12ೆ3 11-00 ಗಂ4ೆ ಸಮಯದ 6 0ಾನು
ಕ8ೇ9ಯ 6:ಾ;ಗ 'ಾ<=:ಾರ9ಂದ ಬಂದ ಖ?ತ ಾA< ಏ0ೆಂದ-ೆ, 'ೆಂಗಳ(ರು ನಗರ ಸಂC2ೆಹ1D
ೕ EಾFಾ ಸರಹ+;ನ ಮ0ೆ ನಂಬ 24/25, 20ೇ ಮಹ*, 60ೇ Gಾ , GೋIಲು KೇಔM,
'ೆಂಗಳ(ರು-560064 ಈ OPಾಸದ 6 ಆR ಕ ಮೂಲದ ವ STಗಳU /ಾಸ/ಾIದು;Gೊಂಡು "WೇXತ
ಾದಕ ವಸುTಗPಾದ ಎಂ.*.ಎಂ.ಎ. S ಸ ಮತುT GೊGೇ ಅನುZ ತಮ ವಶದ 6ಟು Gೊಂಡು
ಅವ\ಗಳನುZ ತಮ2ೆ ಪ9ಚಯOರುವ I-ಾSಗ12ೆ, ಾ_ /ೇ ಉ:ೊ ೕIಗ12ೆ ಮತುT GಾKೇa
O:ಾ bcಗ12ೆ ಾ-ಾಟ ಾಡುdಾT ಅಕ ಮ/ಾI ಹಣ ಸಂ ಾದ0ೆ ಾಡು<TರುdಾT-ೆ ಎಂಬು:ಾI ಈ
+ನ +0ಾಂಕ: 12-05-2024 ರಂದು ಸಂmೆ 'ೆ12ೆ3 11-00 ಗಂ4ೆ2ೆ eಾ<=:ಾರ9ಂದ ಖ?ತ ಾA<
ಬಂದ fೕ-ೆ2ೆ ಸದ9 ಾA<ಯನುZ ಈ ದಳದ ಕ8ೇ9ಯ 6 -"ವcA%ರುವ ಾA< ಪ\ಸTಕದ 6
ನಮೂ+% "ಯ ಾನು ಾರ :ಾ1 ನgೆಸಲು ಾನ ಸhಾಯಕ ೕ ಆಯುಕTರು, ಾದಕದ ವ
"ಗ ಹ ದಳ ರವ9ಂದ ಅನುಮ<ಯನುZ ಪgೆದುGೊಂಡು ಪಂಚರು ಮತುT .%ಬiಂ+ಗPೆ( ಂ+2ೆ fೕಲjಂಡ
ಸ•ಳGೆj hೋI ಾA<ಯನುZ ಖ?ತ ಪ*%Gೊಂಡು "WೇXತ ಾದಕ ವಸುTಗPಾದ ಎಂ.*.ಎಂ.ಎ.
37
Sಸ ಮತುT GೊGೇ ಅನುZ ಪ9ಚಯಸ• I-ಾSಗ12ೆ, GಾKೇa O:ಾ bcಗ12ೆ hಾಗೂ ಾ_ /ೇ
ಉ:ೊ ೕIಗ12ೆ ಾ-ಾಟ ಾಡಲು ತನZ ಬ1 ಇಟು Gೊಂ*ದ; ಆ-ೋCಗPಾದ
1. EMEKA JAMES IWOBA @ AUSTIN NOSO IWOBA S/O NWOBA,
39 Years, ANAM Village, Nigeria Country, Local Address:
#24/25, 2nd floor, 6th cross, Kogilu Layout, Bengaluru-560064,
Phone: 7085986284, +27834200919
2. EREMHEN SMART S/O EREMHEN, 34 Years, EDO State, Nigeria
Country, Local Address: #4, 1st floor, MS Ramaiah Layout,
Avalahalli, Singanayakanahalli Post, Yalahanka, Bengaluru-
560064, Ph No. 7005820232, 8099143297 Ph No:
3. UDERIKE FIDELIS s/o OKAFOR, 34 Yrs, ANAM Village, Nigeria
Country, Local Address: #24/25, 2nd floor, 6th cross, Kogilu
Layout, Bengaluru-560064, Phone: 9901322653, (8798945400
Whatsapp) ಎಂಬುವರ /ಾಸದ ಮ0ೆಯ fೕKೆ :ಾ1 ಾ*ದು;.
ನಂತರ ಇವರುಗ12ೆ ಾದಕವಸುTಗಳ ಬ2ೆ3 Okಾರ ಾಡKಾI ಇವರುಗಳU <1%:ೆ;ೕ0ೆಂದ-ೆ
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ಮತುT ಸುಲಭ/ಾI ಹಣ ಗ1ಸುವ ಉ:ೆ;ೕಶ+ಂದ 2ೋ/ಾ, ಮುಂ'ೈ ಮತುT :ೆಹ ಯ 6 /ಾಸ/ಾIರುವ
ಆR Gಾ ಮೂಲದವ9ಂದ hಾಗೂ hೆkಾsI ಹPೆ :ೆಹ /ಾ% CHIEF ಎಂಬುವವ"ಂದ
ಾದಕವಸುTಗPಾದ ಎಂ.*.ಎಂ.ಎ S ಸ ಮತುT GೊGೇ ಅನುZ ಮತುT ಆಂಧ , ಓ* ಾ ಮೂಲದ ಡ v
ೆಡ6 ಗ1ಂದ 2ಾಂmಾ ಅನುZ ಖ9ೕ+ ಾ* 'ೆಂಗಳ(92ೆ ತಂದು ಅವ\ಗಳನುZ ಅXಕ 'ೆKೆ2ೆ ಾ-ಾಟ
ಾ*Gೊಂ*ರುವ\:ಾI ಮತುT 2ಾ ಹಕರುಗ12ೆ ಎಂ.*.ಎಂ.ಎ. S ಸ & GೊGೇ ಅನುZ 1 2ಾ ಂ2ೆ
10,000/- +ಂದ 12,000/-ಗ12ೆ ಾ-ಾಟ ಾಡು<Tದು;:ಾ;I <1%ರುdಾT-ೆ. hಾಗೂ ಉ1ದ
ಎಂ.*.ಎಂ.ಎ. S ಸ ಮತುT GೊGೇ ಅನುZ ಾ-ಾಟ ಾಡಲು dಾವ\ /ಾಸದ ಮ0ೆಯ
hಾ //ಾwc -ೋx/Sಚ ನ 6ಟು Gೊಂ*ರುವ\:ಾI <1%ದು;, ¥ÀAಚರುಗಳ ಸಮyಮದ 6
"ಯ ಾನು ಾರ ಅ ಾನತುT ಪಂಚ0ಾf ಮೂಲಕ 40 ಲy 'ೆKೆ 'ಾಳUವ 300 2ಾ ಂ ತೂಕದ
ಎಂ.*.ಎಂ.ಎ S ಸ ಮತುT 100 2ಾ ಂ ತೂಕದ GೊGೇ , ಕೃತ Gೆj ಬಳಸKಾIದ; ಎರಡು q'ೈ
{ೕ , ಒಂದು ಎKೆGಾ}"~ ತೂಕದ ಯಂತ hಾಗೂ ಇತ-ೇ ವಸುTಗಳನುZ ವಶGೆj ಪgೆದುGೊಳDKಾI:ೆ.
ಇವರುಗಳ ಾ ೕMc ಮತುT Oೕ ಾ ಬ2ೆ3 GೇಳKಾI ಸಮಂಜಸ/ಾದ ಾA< "ೕ*ರುವ\+ಲ6.
ಸದ9 ಆ-ೋCತರುಗ1ಂದ ವಶಪ*%Gೊಂಡ "Wೇ+ತ ಾದಕವಸುTಗಳನುZ ಈ
ದೂ90ೊಂ+2ೆ hಾಜ ಪ*ಸು<Tದು;, fೕಲjಂಡ ಆ-ೋCತರು ಈ :ೇಶದ Gಾನೂ"2ೆ 2ೌರವGೊಡ:ೇ,
ಅಕ ಮ/ಾI "WೇXತ ಾದಕ ವಸುT/ಾದ ಎಂ.*.ಎಂ.ಎ S ಸ ಮತುT GೊGೇ ಅನುZ ತಮ
38
ವಶದ 6ಟು Gೊಂಡು ಪ9ಚಯಸ• I-ಾSಗ12ೆ ಾ-ಾಟ ಾಡುdಾT ಅಕ ಮ Kಾಭಗ1ಸು<Tದುದ;ಲ:
6 ೇ
ಾ ಾpಕ ಾ ಸ•‚ hಾಳU ಾಡುವ ಕೃತ ದ 6 dೊಡIದು;ದ9ಂದ ಆ-ೋCಗPಾದ 1) EMEKA
JAMES IWOBA @ AUSTIN NOSO IWOBA S/o NWOBA, 39 Years 2)
SMART S/O EREMHEN, 34 Years 3) UDERIKE FIDELIS s/o OKAFOR, 34
Yrs ತKೆಮ-ೆ%Gೊಂ*ರುವ 4) CHIEF hಾಗೂ ಇತರರು ಇವರುಗಳ Oರುದƒ 8(C), 22 (C)
ಎ .*.C.ಎ . Gಾ„;-1985 ಕಲಂ 14 ಆ... †ಾ9ನ c ಆ~ 9ೕdಾ ಪ ಕರಣ :ಾಖ % ತ"‡ೆ
Gೈ2ೊಳUDವಂdೆ Gೋ9, "ೕ*ದ ದೂ9ನ fೕ-ೆ2ೆ EಾFಾ q.ಸಂ:272/2024 ಕಲಂ: 8(C), 22 (C)
ಎ .*.C.ಎ . Gಾ„;-1985 ಕಲಂ 14-ಆ... †ಾ9ನ c ಆ~ 9ೕdಾ ಪ ಕರಣದ :ಾಖ %
Gೊಂ*ರುತT:ೆ. ನಂತರ %%& ಅXGಾ9ಗಳU ಸದ9 ಪ ಕರಣದ ಆ-ೋCಗ1ಂದ :ಾ1ಪಂಚ0ಾf
ಮೂಲಕ ಅ ಾನತುTಪ*%Gೊಂಡು hಾಜರುಪ*%ದ ಾಲನುZ EಾFಾ ಾಲು ಪ‹ ಸಂ‡ೆ 75/2024
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ಅಡಗPೆ( 1%ರುತT:ೆ.
ನಂತರ ಪ ಕರಣದ ಆ-ೋCಗಳನುZ OkಾರFೆ2ೆ ಒಳಪ*%, ಾನ ಸ/ೇckಾs 0ಾ nಾಲಯ
":ೆcಶನದಂdೆ ದಸTI9 ಕ ಮ ಅನುಸ9%, ಸದ9 ಆ-ೋCಗಳನುZ ಸುರŒತ ಬಂಧನ 6 ಇ9%
0ೋ*GೊಳDಲು %ಬiಂXಗಳನುZ 0ೇಮಕ ಾ*ರುತT:ೆ. +0ಾಂಕ: 13/05/2024 ರಂದು ಪ ಕರಣದ
ಆ-ೋCಗPಾದ Al EMEKA JAMES IWOBA @ AUSTIN NOSO IWOBA S/o
NWOBA, 39 Years, A2. 2) SMART S/o EREMHEN, 34 Years A3.
UDERIKE FIDELIS s/o OKAFOR, 34 Yrs ರವರುಗಳನುZ /ೈದ Sೕಯ ಪ9ೕ•ೆ2ೆ ಒಳಪ*%,
ವರXಯನುZ ಪgೆದುGೊಂ*ರುತT:ೆ. ನಂತರ ಪ ಕರಣದ ಆ-ೋCಗಳ ಸ ಇkೆs hೇ1GೆಗಳನುZ
ಪgೆದುGೊಂ*ರುತT:ೆ.
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Gಾರಣಗ12ಾI ಆ-ೋCಗ1ೕ2ೆ 0ಾ nಾಂಗ ಬಂಧನವನುZ OX% ಆ:ೇಶ "ೕಡ'ೇGಾI GೋರKಾI:ೆ.
GೋರKಾI:ೆ
1) ಪ ಕರಣದ ಆ-ೋCಗಳU ಮೂಲತಹ O:ೇ ಪ mೆಗPಾIರುdಾT-ೆ. ಸದ9 ಪ mೆಗಳU
'ೆಂಗಳ(ರುನಗರದ 6 /ಾಸOರುವ ಬ2ೆ3 nಾವ\:ೇ "ಖರ/ಾದ ಾA< ಇರುವ\+ಲ6. ಾ£Àå
0ಾ nಾಲಯವ\ ಆ-ೋCಗ12ೆ mಾ ೕನು "ೕ*ದ; 6 ತKೆಮ-ೆ%GೊಳUDವ ಸಂಭವOರುತT:ೆ.
2) ಪ ಕರಣದ 6 ಾ Xೕನಪ*%Gೊಂಡ ಾದಕ ವಸುTಗಳನುZ -ಾ ಾಯ"ಕ ಪ9ೕ•ೆ ಬ2ೆ3 ಕಳUA¹
ವರ+ ಪgೆಯ 'ೇGಾI:ೆ
39
3) ಆ-ೋCಗಳನುZ mಾ ೕ"ನ 6 hೊರ ಬಂದ 6 ಪ\ನಃ ಇಂತಹ ಕೃತ ವನುZ ಾಡುವ ಾಧ dೆ
ಇ:ೆ.
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ಜ0ಾಂಗವನುZ ತಪ\' :ಾ92ೆ ಎPೆಯುವ ಾಧ dೆ ಇ:ೆ.
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ಾಧ dೆ ಇರುತT:ೆ.
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ಪgೆದುGೊಳD'ೇGಾIದು;, ಾನ 0ಾ nಾಲಯವ\ mಾ ೕನು "ೕ*ದ ,6 ಾŒ:ಾರ92ೆ
'ೆದ9Gೆ hಾಕುವ ಸಂಭOರುತT:ೆ.
7) ಸದ9 ಪ ಕರಣದ ಾದಕ ದ ವ mಾಲದ 6ನ, ಇತ-ೆ ಆ-ೋCಗಳU 'ಾ ೕKಾIರುವ
ಾ:ೆdೆಗಳU ಇರುವ\ದ9ಂದ, ಸದ9 ಆ ಾ ಗಳನುZ ಪdೆT ಾಡ'ೇGಾIರುತT:ೆ. ಸದ9
ಆ ಾ 2ೆ mಾ ೕನು "ೕ*ದ; 6, ಸದ9 ಪ ಕರಣದ 6 'ಾ ೕKಾIರುವ ಅ ಾ ಗಳU ತKೆ
ಮ-ೆ%GೊಳUDವ ಾದ dೆಗ1ರುತT/ೆ.
8) ಪ ಕರಣದ 6 ತKೆ ಮ-ೆ%Gೊಂ*ರುವ ಆC ೕಕ ಮೂಲದ ಎ4.?ೕ... ಎಂಬುವನು ತKೆ
ಮ-ೆ%Gೊಂ*ದು;, ಸದ9 ಆ-ೋCಯನುZ ಪdೆT ಾಡ'ೇGಾIರುತT:ೆ. ಆ-ೋCಗ12ೆ
mಾ ೕನು "ೕ*ದ; 6 ತKೆ ಮ-ೆ%Gೊಂ*ರುವ ಆ-ೋC2ೆ ಪ ಕರಣದ ಸಂಬಂಧ ಾA< "ೕ*,
ಎ4.ಆ-ೋCಯು ೕ 92ೆ %ಗ:ೆ ತKೆಮ-ೆ%GೊಳDವ ಸಂಭವOರುತT:ೆ.
fೕಲjಂಡ ಎKಾ6 Gಾರಣಗ1ಂದ ದಸTI9nಾದ ಎ1, ಎ2, ಎ3 ಆ-ೋCಗಳನುZ ಾನ
0ಾ nಾಲಯವ\ mಾ ೕ"ನು "ೕಡ:ೆ ಾನ 0ಾ nಾಂಗ ಬಂಧನದ 69ಸಲು Gೋ9 ಸದ9
ಆ-ೋCಗಳನುZ %ಬiಂ+ಯವ-ಾದ Pc14417, pc14499 ರವರ 'ೆಂ2ಾವ ನ 6
ಕಳUA%Gೊ‹ ರುತT:ೆ.
ಸA/-
ೕ ಸx ಇ ೆಕ
ಸಂC2ೆಹ1D ೕ EಾFೆ
'ೆಂಗಳ(ರು ನಗರ."
40
The afore-quoted remand application depicts that it was for the first
time the grounds of arrest were made known to the petitioners,
that too in a language not known to them. It ought to have been
furnished in English, as the petitioners were foreign nationals who
would understand English and not the vernacular. Furnishing of
grounds of arrest cannot be a mere formality, only for the sake of
furnishing. The mandate of the law is to furnish it immediately and
in the language known to the accused or English language. The
petitioners thus are entitled to be set at liberty on the ground of
non-furnishing of the grounds of arrest in a manner known to law.
16. The petitioners are admittedly overstaying on the soil of
this nation for more than a decade, without any valid documents for
such stay. Therefore, even if the petitioners are to be set at liberty,
they should be handed over to the FRRO to take steps in
accordance with law. What steps to be taken is found in the statute
i.e., the Foreigners Act or the SOP that is now placed on record by
the learned Deputy Solicitor General of India.
41
THE SOP:
17. The Government of India has now ushered in a SOP dated
25-11-2025, governing the withdrawal of prosecution in cases
involving foreign nationals, with the avowed objective of facilitating
their deportation. The preamble to the said SOP records
circumstances which necessitated its formulation. The preamble is
as follows:-
"I am directed to say that misuse of legal
procedures by certain foreign nationals who intentionally
implicate themselves in criminal offences to delay
deportation or gain prolonged stay in the India has been
observed by the Law Enforcement Agencies in various
States/UTs. Once the case is registered, these foreigners
use various legal and procedural tactics viz., repeated
adjournments sought on medical grounds, change of
counsel, filing frivolous applications before the trial Court
such as bail & discharge, absconding between hearings,
claiming refugee status on frivolous ground during
pending trial and by challenging various stages of trial
procedure in higher courts. These tactics have often
resulted in prolonged under trial detention or bail with
restrictions, effectively allowing them to remain in India
for years and expand their criminal activities, gangs and
organized crimes in the country.
2. This matter came up for consideration at the
DGsP/IGsP Conference, 2024, when it was inter alia decided
that a comprehensive policy/legal framework to prevent misuse
of judicial process by foreigners to overstay may be formulated
by the Ministry of Home Affairs, in consultation with all
stakeholders. It was further decided that the policy may
examine withdrawal of cases where punishments were less than
7 years to facilitate deportation.
42
3. Accordingly, the matter regarding framing of a
model Standard Operating Procedure (SOP) for
withdrawal from prosecution in cases filed against
foreigners to facilitate their deportation has been
examined by this Ministry in consultation with various
stakeholders. Based on the inputs received from various
stakeholders, a model SOP has been prepared in this
regard within the framework of Section 360 of Bharatiya
Nagrik Suraksha Sanhita, 2023 (46 of 2023) and a copy
of the same is enclosed.
4. The model SOP indicates the types of cases
where withdrawal from prosecution may be considered
against the foreigners, types of cases where such
withdrawal from prosecution may not be considered and
the detailed procedure that may be followed by State/UT
prosecuting agencies and central prosecuting agencies
for withdrawal from prosecution in such cases. Review of
such cases by two Committees i.e., one District Level
Screening Committee and another State Level Screening
Committee in cases filed by State/UT prosecuting
agencies is envisaged in the model SOP. In cases filed by
central prosecuting agencies, it has been suggested that
they may consider constituting an Agency Screening
Committee to review such cases.
5. The objective of this model SOP is to prevent
misuse of the judicial process by foreigners to prolong
their stay in India. This will facilitate early deportation of
such foreigners from the country and will also help in
conservation of valuable judicial resources.
6. State/UT prosecuting agencies and central prosecuting
agencies are advised to consider adopting the enclosed model
SOP, by taking approval of the respective competent authorities,
for withdrawal from prosecution in respect of cases filed against
foreigners. Steps taken in this regard may please be intimated
to this Ministry at the earliest."
(Emphasis supplied)
43
It is observed that certain foreign nationals have been misusing the
legal process of the country by deliberately implicating themselves
in criminal proceedings, so as to thwart or delay deportation and
thereby prolong their stay within the territory of India. The
background to bring in the SOP reads as follows:
"1. Background
Misuse of legal procedures by certain foreign nationals
who intentionally implicate themselves in criminal offences to
delay deportation or gain prolonged stay in India has been
observed by the Law Enforcement Agencies in various
States/UTs. Once the case is registered, these foreigners use
various legal and procedural tactics viz., repeated adjournments
sought on medical grounds, change of counsel, filing frivolous
applications before the trial Court such as bail & discharge,
absconding between hearings, claiming refugee status on
frivolous ground during pending trial and by challenging various
stages of trial procedure in higher courts. These tactics have
often resulted in prolonged under-trial detention or bail with
restrictions, effectively allowing them to remain in India for
years and expand their criminal activities, gangs and organized
crimes in the country.
In the DGsP/IGsP Conference, 2024, it was inter-alia
decided as under:
"A comprehensive policy/legal framework to prevent
misuse of judicial process by foreigners to overstay, to be
formulated by MHA, in consultation with all stakeholders,
including MEA, IB and legal officers. The policy would examine
withdrawal of cases where punishments were less than 7 years,
to facilitate deportation."."
44
The types of cases where withdrawal of prosecution is to be
considered are as follows:
"3. Types of cases where withdrawal from prosecution
may be considered against the foreigners.
(i) An offence registered under the Bharatiya Nyay Sanhita,
2023 (45 of 2023) which is compoundable under Section
359 of the Bharatiya Nagarik Suraksha Sanhita, 2023(Act
46 of 2023).
(ii) An offence registered under the Bharatiya Nyay Sanhita,
2023 (45 of 2023) which carries a punishment of
imprisonment of up to 7 years.
(iii) An offence registered under any Central Act, including the
Immigration and Foreigners Act, 2025 (13 of 2025) and
its predecessor Acts, but other than Narcotic Drugs and
Psychotropic Substances (NDPS) Act, 1985 (61 of 1985)
or any State Act which is compoundable and/or where the
punishment provided for the offence in the Act is
imprisonment of up to 7 years.
(iv) An offence under the NDPS Act which carries a
punishment of imprisonment up to ten years.
(v) Cases involving inexpediency of prosecution where trial is
pending for more than five years."
(Emphasis supplied)
Clause (iv) of the clauses under the head 'types of cases where
withdrawal from prosecution may be considered' notices that even
offences under the NDPS Act which carries a punishment of
imprisonment up to 10 years can become the consideration under
45
the SOP supra for withdrawal of the prosecution and consequent
deportation. The procedure for the said process is found in Clause
5. It reads as follows:
"5. Procedure to be followed for withdrawal from
prosecution in cases filed against foreigners
A. The following procedure may be followed by State/UT
prosecuting agencies for withdrawal from prosecution in
cases filed against foreigners: -
(i) State/UT level Director of Prosecution in the State
Government/UT Administration may be the Nodal Agency
for this purpose and will be responsible for maintaining
proper records and prompt disposal of all such cases.
(ii) For this purpose, two Committees i.e., one District level
Screening Committee and State level Screening
Committee may be constituted with the following
composition: -
District level Screening State level Screening Committee
Committee
(a) District Magistrate of the (a) Additional Chief
respective District -Chairperson Secretary/Principal Secretary
(Home) Chairperson
(b) District SSP/SP of the (b) Principal Secretary (Law &
respective District or Deputy Justice) - Member
Commissioner of Police/Special
Branch (Intelligence Unit) in
Police Commissionerate system -
Member
(c) Chief Public Prosecutor of the (c) IG rank officer nominated by
District- Member the DGP of the State-Member
(d) Public Prosecutor in charge (d) Jurisdictional Foreigners
46
of the case - Member Regional Registration Officer
(FRRO)- Member
The Committee may also co-opt
- (e) Director of Prosecution -
(i) retired Judicial Officers; and Member
(ii) the Investigating Officer (IO) (f) Deputy Secretary (Home) as
in charge of the case proposed by the Additional Chief
Secretary/Principal Secretary
(In cases of cities of Police (Home) - Member
Commissioner system, State/UT
may think of one DLSC for the
city or one DLSC for each police
district. In such cases DLSC can
be headed by Joint CP or DCP as
the case may be)
(iii) Role of District Level Screening Committee (DLSC):
(a) DLSC may suo-moto review every quarter all such cases
where withdrawal from prosecution against foreigners can
be considered in terms of paras 3 and 4 above.
(b) DLSC may invariably obtain inputs from the jurisdictional
FRRO. It may also consult any other District Level Officer
belonging to any Department from whom it may deem
necessary to take advice/assistance and may call the
officer concerned to attend its meeting and participate in
its proceedings.
(c) DLSC may examine the cases thoroughly taking into
account merits and demerits of each case. It may
carefully analyse the implications, both in the
national and international context.
DLSC may record a reasoned written opinion, supported by legal
grounds, public interest justification etc.
Note:-
(1) In cases, where co-accused persons are Indian nationals
and the prosecution is to be withdrawn against foreign
47
nationals only, the impact of such withdrawal may be
carefully examined by the District Level Screening
Committee taking into account the legal implications. All
such cases may invariably be referred to the State Level
Screening Committee for final decision along with
recommendations of the DLSC.
(2) In case of a foreigner against whom multiple cases
have been filed either in the same State / UT or in
different States/ UTs, it would be preferable to take
action for withdrawal from prosecution in respect of
all cases together in consultation with all the
States/UTs concerned. In such cases, the State/ UT
where the foreigner is kept in custody or living on
bail may process the matter and coordinate with
the other States / UTs concerned.
(3) In cases filed against a foreigner under the NDPS
Act and in cases of foreigners involved in smuggling
cases under the Customs Act, 1962, the DLSC may
also examine as to whether the foreigner involved
is a part of any organized crime syndicate having
internal or international linkages before taking a
decision on withdrawal from prosecution.
(4) While considering the cases for withdrawal from
prosecution in cases filed against a foreigner, the DLSC
may also consider whether the case falls in any of the
following categories: -
➤ Involving Interpol Notices issued by a foreign
Government
➤ Extradition requests from third countries
➤ Treaty obligations to prosecute certain crimes
under international law (e.g., torture, war crimes).
All such cases may be examined thoroughly before taking
a final decision.
48
(5) In cases where there is divergence of views
between jurisdictional FRRO and the District Level
Committee, the matter may be escalated to the
State Level Screening Committee with necessary
recommendations for a final decision.
(d) In cases involving offences punishable up to a
period of 3 years, DLSC may take a final decision on
withdrawal from prosecution. However, for cases
which are covered by proviso to section 360 of the
BNSS 2023 requiring prior permission from the
Central Government, DLSC may obtain the consent
of the Ministry/Department of the Central
Government administering the particular Central
Act. For example, cases relating to Passports Act to
the Ministry of External Affairs, NDPS Act to the
Ministry of Home Affairs, Customs Act to the
Ministry of Finance (Department of Revenue), cases
handled by CBI to the Department of Personnel &
Training etc.
Note
In respect of cases registered under the erstwhile
Passport (Entry into India) Act, 1920, the Registration of
Foreigners Act, 1939 & the Foreigners Act, 1946 and
under the Immigration and Foreigners Act, 2025, the
jurisdictional FRRO is authorized to give the requisite
consent of the Central Government.
(e) Thereafter, consent for withdrawal from
prosecution may be conveyed by DLSC to the public
prosecutor in charge of the case who may file an
application under section 360 of the BNSS, 2023
before the trial court concerned.
(f) All other cases, which do not fall under the category
mentioned in clause (d) above, may be referred by
DLSC to the Director of Prosecution in the State
Government/ UT Administration along with its due
recommendation.
49
(g) Withdrawal from prosecution shall be effective only
upon consent of the competent trial court under
section 360 of BNSS, 2023.
(iv) Role of State Level Screening Committee (SLSC):
(a) Cases referred by the District level Screening Committee
may be placed before SLSC by the Director of Prosecution
for consideration.
(b) SLSC may examine the cases thoroughly taking into
account the recommendation of the DLSC. It may
also consult any other state level officers belonging
to any Department from whom it may deem
necessary to take advice/assistance and may call
the officer concerned to attend its meeting and
participate in its proceedings.
(c) For cases which are covered by proviso to section
360 of the BNSS 2023 requiring prior permission
from the Central Government, SLSC may obtain the
consent of the Ministry/Department of the Central
Government administering the particular Central
Act.
Note
In respect of cases registered under the erstwhile
Passport (Entry into India) Act, 1920, the
Registration of Foreigners Act, 1939 & the
Foreigners Act, 1946 and under the Immigration
and Foreigners Act, 2025, the jurisdictional FRRO is
authorized to give the requisite consent of the
Central Government.
(d) Recommendation of SLSC may be referred by the Director
of Prosecution to the Home Department of the State
Government/ UT Administration for final approval.
(v) Role of Home Department of the State Government/ UT
Administration
50
(a) Home Department of the State Government/
UT Administration may obtain the approval of
the competent authority for withdrawal from
prosecution.
(b) After obtaining the approval of the competent
authority in the State Government/ UT
Administration and prior permission of the
Central Government wherever necessary,
Home Department of the State Government/
UT Administration may convey the consent for
withdrawal from prosecution to the Director
of Prosecution.
(c) Director of Prosecution may thereafter convey
the consent for withdrawal from prosecution
to the public prosecutor in charge of the case.
Thereafter, the public prosecutor may file an
application under section 360 of the BNSS
2023 before the trial court concerned.
(d) Withdrawal from prosecution shall be effective only
upon consent of the competent trial court under
section 360 of BNSS, 2023.
B. The following procedure may be followed by central
prosecuting agencies for withdrawal from prosecution in
cases filed against foreigners:-
(i) Director General/ Director of a central
prosecuting agency may designate
prosecution wing or any other wing within
agency as "Nodal Wing" for this purpose and
may maintain proper records of cases filed
against foreigners.
(ii) Director General/ Director of a central
prosecuting agency may constitute an Agency
Screening Committee (ASC) to suo moto
review every quarter all such cases where
withdrawal from prosecution against
foreigners can be considered in terms of
paras 3 and 4 above. An officer, as nominated
51
by Commissioner Bureau of Immigration, may
be a member of such committee.
(iii) ASC may examine the cases thoroughly taking
into account merits and demerits of each
case. It may carefully analyse the
implications, both in the national and
international context. ASC may record a
reasoned written opinion, supported by legal
grounds, public interest justification etc.
(iv) ASC may forward its recommendation to
Director General/Director of the central
prosecuting agency, who in turn may take
final decision in cases involving offences
punishable up to a period of 3 years, on
withdrawal from prosecution, after the
internal or any other consultations as
required. The other cases may be forwarded,
with due recommendations, to the
Administrative Ministry/ Home Ministry, as
required, for taking decision on withdrawal of
cases against foreigners, based on
recommendations received and after due
consultations, as required.
(v) After decision as above, the "Nodal Wing of
the central prosecuting agency may convey
the consent for withdrawal from prosecution
to the public prosecutor in charge of the case.
Thereafter, the public prosecutor may file an
application under section 360 of the BNSS
2023 before the trial court concerned.
(vi) Withdrawal from prosecution shall be
effective only upon consent of the competent
trial court under section 360 of BNSS, 2023."
(Emphasis supplied)
52
In terms of the procedure stipulated, a District Level Screening
Committee and State Level Screening Committee is to be
constituted. The role of the District Level Screening Committee is
also indicated, so is the role of the State Level Screening
Committee. The role of the Home Department of the State/Union
Territory administration is also indicated. It is applicable where the
appeals are pending against acquittal of foreigners as well.
Deportation of such persons is also dealt with under Clause 7. It
reads as follows:
"7. Deportation of foreign nationals after withdrawal
from prosecution
(i) Where consent has been given by the trial court for
withdrawal from prosecution and the foreigner has
a valid passport, immediate necessary action may
be initiated by the State Government/ UT
Administration/ FRRO/ FRO concerned to deport
the foreigner within 15 days from the date of order
from the trial court.
(ii) Detailed procedure for deportation of a foreigner
who has no valid travel document has been laid
down in the instructions issued by the Ministry of
Home Affairs (Foreigners Division) from time to
time. According to these instructions, in all cases
where the foreign national concerned does not have
a valid travel document/passport, the State
Government/ UT Administration/ FRRO/ FRO
concerned may take up the matter regarding
53
nationality verification and issuance of travel
document in favour of the foreigner with the
Ministry of External Affairs immediately on arrest of
the foreign national or on filing of FIR.
(iii) In cases where in the process of withdrawal from
prosecution has been initiated by the DLSC or SLSC
or ASC and action to procure travel document has
not been initiated as per the procedure mentioned
in sub-para (ii) above, document preparation like
procuring travel documents, return tickets etc. may
be initiated simultaneously by the concerned
authority of State/UT or central prosecuting agency
in consultation with the jurisdictional FRRO.
(iv) Pending nationality confirmation and issuance of
travel document in favour of the foreigner,
movements of the said foreigner may be restricted
to any holding center/ camp. Necessary action may
be taken to deport the foreigner immediately on
receipt of the travel document within 15 days of
receipt of the travel document."
(Emphasis supplied)
The SOP, right from its preambular statement, records a
disturbing trend. Foreign nationals once implicated in
criminal proceedings were resorting to variety of procedural
stratagems such as, repeated adjournments on medical
grounds, frequent change of legal representation, filing of
frivolous applications, absconding between hearings and
raising untenable claims of refugee status. These tactics
54
often culminated in protracted trial. Recognizing the said
gravity, the deliberations have led to the bringing in of the
SOP. The SOP also recognizes rather prescribes, an institutional
mechanism to scrutinize such cases. It mandates the constitution
of District Level Screening Committee and a State Level Screening
Committee to examine the feasibility of withdrawing prosecutions
instituted by the State or any prosecuting agency. The Home
Department of the State or the Union Territory is assigned a
supervisory role.
18. Equally significant is the SOP's recognition that
withdrawal of prosecution may extend even to cases where appeals
against acquittals are pending. The SOP further reiterates that
deportation of foreign nationals, lacking valid travel documents,
must be carried out in accordance with the extant guidelines of the
Ministry of Home Affairs.
19. The State Government shall now undertake the entire
exercise of constituting a State Level Committee and the District
Level Screening Committee, as is observed in the SOP supra, within
55
four months from the date of receipt of the copy of this order, as
the SOP and the constitution of the Committee is to ensure
that valuable judicial resources are not squandered in
prosecutions that ultimately serve only to facilitate
overstays. The steps taken towards the constitution of the
Committee shall be reported back to this Court, notwithstanding the
disposal of the subject petition.
SUMMARY OF FINDINGS:
• Article 22(1) of the Constitution of India mandates that every
person arrested must be informed of the grounds of arrest.
• The requirement of informing the grounds of arrest is a
mandatory Constitutional safeguard and not a procedural
formality.
• The Constitutional protection under Article 22 extends to all
persons within the territory of India including the foreign
nationals, as it is not citizen centric, but person centric.
• The law does not prescribe a rigid form of communicating
grounds of arrest. Substantial compliance is sufficient,
56
provided the arrested person is made aware of the basis of
the arrest.
• The judicial review in such cases is limited to whether
grounds of arrest were communicated and not the adequacy
or correctness of the grounds of arrest.
• Finding violation of the mandate of the Apex Court qua the
grounds of arrest, the petitioners are entitled to be set at
liberty.
• The moment the petitioners are set at liberty, they must be
handed over to the FRRO, to take further action, in terms of
the SOP, for withdrawal of the prosecution and consequent
deportation of these petitioners, as they are admittedly
overstaying in this country for more than 10 years, without
any valid documents, only on the score that one or the other
prosecution is pending against them and the present case
concerns recovery of 400 gms. of MDMA from the hands of
the petitioners.
20. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed in part.
57
(ii) The petitioners are entitled to be set at liberty on the
grounds of arrest not being served upon them in a
manner known to law.
(iii) The petitioners on them being set at liberty be
handed over to the FRRO of the jurisdiction, to take
further steps against the petitioners for overstaying,
without any valid documents, for more than a
decade, in terms of the SOP.
(iv) The State shall constitute the State Level Screening
Committee/District Level Screening Committee, as is
found in the SOP and report such constitution to this
Court within 4 months from the date of receipt of the
copy of this order.
This Court places its deep appreciation to the valuable
assistance rendered by Sri H Shanthi Bhushan, learned Deputy
Solicitor General of India.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ