The High Court of Kerala has held that an arrest is illegal if the grounds of arrest are not communicated to the arrestee’s near relatives, even if communicated to the arrestee本人. This violation of Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023, renders the detention unlawful and entitles the accused to bail. The judgment reinforces the constitutional mandate that arrest procedures must be transparent and protective of personal liberty.
The Verdict
The applicant won. The Kerala High Court granted regular bail on the ground that the arrest was illegal due to failure to communicate the grounds of arrest to the arrestee’s near relatives, despite communication to the arrestee himself. The court held that Article 22(1) and Section 47 of BNSS require such communication to family members to make the constitutional safeguard meaningful. The applicant was released on bond of Rs. 1,00,000 with two sureties and subject to specific conditions including restricted movement and regular reporting.
Background & Facts
The applicant, accused No. 2 in Crime No. 28/2025, was arrested on 19 March 2025 for possession and transportation of 6.987 grams of MDMA and later implicated in the concealment of 285 grams of methamphetamine in a secret chamber of a vehicle. The case was registered under Sections 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act. The applicant remained in custody since arrest. The trial court had earlier rejected his bail application on 28 October 2025. The present bail application was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the legality of the arrest on procedural grounds. The prosecution claimed that the grounds of arrest were communicated to the arrestee and intimated to a relative via phone. However, documentary evidence showed that the relative named in the arrest intimation notice, Mihad, was abroad on the date of arrest, rendering the communication ineffective. The applicant’s counsel argued that the arrest was therefore illegal, while the State contended that communication to the arrestee alone satisfied legal requirements.
The Legal Issue
The central question was whether the constitutional mandate under Article 22(1) and statutory obligation under Section 47 of BNSS are satisfied merely by communicating the grounds of arrest to the arrestee, or whether such communication must also be extended to near relatives to render the arrest lawful.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Supreme Court decisions in Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar, and Mihir Rajesh Shah to establish that communication of grounds of arrest is mandatory under Article 22(1). He further cited Kasireddy Upender Reddy and Alvin Riby to argue that failure to inform relatives defeats the purpose of the constitutional safeguard, which is to enable timely legal recourse and prevent arbitrary detention. The arrest memo and intimation notice were submitted as evidence showing the relative was abroad, making communication impossible.
For the Respondent
The State contended that the arrest was lawful because the grounds were communicated to the arrestee本人, as evidenced by the signed arrest memo. It argued that informing relatives is a procedural formality, not a substantive requirement, and that the Supreme Court has never held non-communication to relatives to be fatal to arrest legality. The prosecution further submitted that the nature of the offence under NDPS Act, involving large quantities of narcotics, warranted continued custody.
The Court's Analysis
The court began by affirming that Article 22(1) is a fundamental safeguard against arbitrary arrest, and Section 47 of BNSS codifies this constitutional obligation. The court rejected the State’s argument that communication to the arrestee alone suffices, noting that the Supreme Court in Kasireddy Upender Reddy had explicitly held that the purpose of Article 22(1) is not merely to inform the accused but to enable his family to secure his release through legal means. The court observed that the arrest intimation notice, Annexure 4, falsely claimed communication to a relative who was abroad, as proven by Annexure 5, the passport record. This rendered the intimation a nullity. The court distinguished this from cases where relatives were unreachable due to genuine logistical issues, noting that here the State had falsely recorded communication. The court emphasized that procedural compliance is not a technicality but a constitutional imperative. > "The mandate of Article 22(1) becomes meaningless if the arrestee’s family is kept in the dark, depriving them of the opportunity to seek legal remedies or arrange for bail." The court further relied on its own precedent in Alvin Riby, which had followed Kasireddy, to conclude that the arrest was illegal and the detention unlawful. The court declined to weigh the gravity of the offence as a factor against bail, since the illegality of arrest itself invalidated the detention.
What This Means For Similar Cases
This judgment establishes a binding precedent in Kerala and carries persuasive weight nationally. Practitioners must now ensure that arrest memos include verifiable proof of communication to at least one near relative, such as a signed acknowledgment, call log, or affidavit. In NDPS and other serious offence cases, prosecutors can no longer rely on the severity of the charge to override procedural violations. Courts must now examine arrest compliance as a threshold issue before considering bail merits. The ruling does not apply where relatives are genuinely unreachable or untraceable, but the burden of proving such impossibility lies with the State. Failure to comply may result in automatic bail, suppression of evidence, or even contempt proceedings for falsified records. This decision elevates procedural due process to a non-negotiable component of lawful arrest.
