Muhammed Bilal vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking regular bail.

The applicant is the accused No.5 in Crime No.1059/2025  of  Kondotty  Police  Station,  Malappuram  District. The  offences  alleged  are  punishable  under  Sections  22(c)  and 27(A) r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case, in short, is that the excise officials seized 50.61 grams of MDMA from the joint possession of accused Nos.1 to 3 on 11.09.2025 from Room No.203 of Red Bell Residency, Kizhisseri. The further allegation against the accused  Nos.5  and  7 is  that  the  said  offence  was  committed  in furtherance of conspiracy between the said accused and the applicant herein along with other co-accused and thereby committed the offences.

I have heard Sri.Abdul Hadi M.P., the learned counsel for the applicant and Sri. M.C.Ashi, the learned Senior Public Prosecutor. Perused the case diary.

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 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.

The  applicant  was  arrested  on  15.09.2025  and  since then he is in judicial custody.

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.

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  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.

The question whether failure to communicate written grounds  of  arrest  would  render  the  arrest  illegal,  necessitating the release of the accused, is no longer res integra. The Supreme Court in Pankaj Bansal v. Union of India and Others  [(2024)  7  SCC  576],  while  dealing  with  Section  19  of the Prevention of Money Laundering Act, 2002, has held that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. It was further held that a copy of written grounds of arrest should be furnished to the arrested person as a matter of course and without exception. In Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], while dealing with the offences under the Unlawful Activities Prevention Act, 1967 (for short, ‘UAPA’), it was held that any person arrested  for  an  allegation  of  commission  of  offences  under  the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed 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.

In Vihaan Kumar v. State of Haryana and Others  (2025  SCC  OnLine  SC  269],  the  Supreme  Court,  while dealing with the offences under IPC, reiterated that the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. It was further held that if the grounds of arrest are  not  informed,  as  soon  as  may  be  after  the  arrest,  it  would amount to the violation of the fundamental right of the arrestee guaranteed under Article 22(1) of the Constitution, and the arrest  will  be  rendered  illegal.  It  was  also  observed  in  the  said judgment that although there is no requirement to communicate the grounds of arrest in writing, there is no harm if  the  grounds  of  arrest  are  communicated  in  writing  and  when arrested accused alleges non-compliance with the requirements of Article 22(1) of the Constitution, the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1).

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 accused person is arrested on warrant and it contains the reason for arrest, there is  no  requirement  to  furnish  the  grounds  for  arrest  separately and a reading of the warrant to him itself is sufficient compliance with the requirement of informing the grounds of his  arrest.  In  State  of  Karnataka  v.  Sri  Darshan  (2025  SCC OnLine  SC  1702),  it  was  held  that  neither  the  Constitution  nor the relevant statute prescribes a specific form or insists upon a written communication in every case. Substantial compliance of the  same  is  sufficient  unless  demonstrable  prejudice  is  shown. It was further held that individualised grounds are not an inflexible requirement post Bansal and absence of written grounds does not ipso facto render the arrest illegal unless it results in demonstrable prejudice or denial of an opportunity to defend. However, in Ahmed Mansoor v. State (2025 SCC OnLine SC 2650), another two Judge Bench of the Supreme Court distinguished the principles declared in Sri Darshan (supra) and observed that in Sri Darshan (supra), the facts governing are quite different in the sense that it was a case dealing with the cancellation of bail where the chargesheet had been filed and the grounds of detention were served immediately. Recently, in Mihir Rajesh Shah v. State of Maharashtra  and  Another  (2025  SCC  OnLine  SC  2356),  the three  Judge  Bench  of  the  Supreme  Court  held  that  grounds  of arrest must be informed to the arrested person in each and every  case  without  exception  and  the  mode  of  communication of such grounds must be in writing in the language he understands.  It  was  further  held  that  non  supply  of  grounds  of arrest in writing to the arrestee prior to or immediately after arrest  would  not  vitiate  such  arrest  provided  said  grounds  are supplied in writing within a reasonable time and in any case two hours prior to the production of arrestee before the Magistrate.

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.

The following principles of law emerge from the above mentioned binding precedents.

(i) The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under IPC/BNS.

(ii) The grounds of arrest must be communicated in writing to the arrestee in the language he understands.

(iii)  In  cases  where  the  arresting  officer/person  is  unable to communicate the grounds of arrest in writing soon after arrest, it be so done orally. The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to the production of the arrestee for the remand proceedings before the Magistrate.

(iv) In NDPS cases, specification of quantity of the contraband  seized  is  mandatory  for  effective  communication  of grounds of arrest.

(v) In case of non compliance of the above, the arrest and the subsequent remand would be rendered illegal and the arrestee should be set free forthwith.

(vi) The burden is on the police to establish the proper communication of grounds of arrest.

(vii) The filing of charge sheet and cognizance of the order cannot validate unconstitutional arrest.

I went through the case diary. It shows that the grounds of  arrest  were  intimated  to  the  applicant  and  all  formalities  in accordance  with  Chapter  V of  BNSS  have  been  complied  with. The  notice  served  on  the  applicant  under  Section  47  of  BNSS shows  that  at  the  time  of  his  arrest,  the  specific  grounds  and reasons for arrest were communicated to him. The case records would  further  show  that  the  intimation  regarding  the  arrest,  in compliance with Section 48 of the BNSS was given to the close relative of the applicant through WhatsApp. The intimation sent through Whatsapp would amount to an intimation in writing. The  Supreme  Court's  judgment  in  Mihir  Rajesh  Shah  (supra) which  mandates  the  furnishing  of  written  grounds  for  arrest  to an accused before remand in all offences will operate prospectively and cannot be applied to arrests made prior to the date  of  the  judgment.  The  arrest  in  this  case  was  prior  to  the judgment in Mihir Rajesh Shah (supra). Therefore, the applicant is not entitled to be released on bail. The bail application is, accordingly, dismissed.