The Kerala High Court has reaffirmed that compliance with constitutional safeguards during arrest is not discretionary but mandatory. A failure to communicate the grounds of arrest to both the accused and their near relative renders the arrest illegal, irrespective of the gravity of the offence or the strength of prima facie evidence. This ruling reinforces the foundational principle that procedural fairness under Article 22(1) of the Constitution cannot be sacrificed for investigative expediency.
Background & Facts
The Dispute
The petitioner, Arun Sabu, is accused as Accused No.2 in Crime No.958/2023 filed at Chevayur Police Station, Kozhikode. The case involves the recovery of 66.650 grams of methamphetamine from a residence owned by Accused No.1. The prosecution alleges that the petitioner acted as an agent for a drug trafficking lobby and conspired with others to possess commercial quantities of narcotics in violation of the NDPS Act.
Procedural History
The petitioner was arrested on 28.03.2024 pursuant to a production warrant issued by a Magistrate. The case diary reveals:
- No record of the grounds of arrest being communicated to the petitioner at the time of arrest
- No evidence that the police informed any near relative of the petitioner about the arrest
- The petitioner filed a bail application before the High Court after the Sessions Court denied relief
Relief Sought
The petitioner sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, arguing that the arrest was illegal due to non-compliance with constitutional and statutory mandates.
The Legal Issue
The central question was whether the failure to communicate the grounds of arrest to the accused and their near relative, as required by Article 22(1) of the Constitution and Section 47 of the BNSS, invalidates the arrest and entitles the accused to bail even in serious drug offences.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on recent Supreme Court rulings including Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), and Kasireddy Upender Reddy v. State of Andhra Pradesh to argue that communication of arrest grounds is a non-negotiable constitutional right. The absence of such communication, even in cases involving commercial quantities of narcotics, renders the arrest void ab initio. The counsel emphasized that the case diary contained no proof of compliance with Section 47 BNSS.
For the Respondent
The Senior Public Prosecutor contended that the arrest was lawful as it followed a production warrant and court order. The prosecution argued that the petitioner’s involvement in a large-scale drug racket justified continued custody and that technical violations should not override public interest in combating narcotics trafficking.
The Court's Analysis
The Court examined the constitutional and statutory framework governing arrest. It held that Article 22(1) mandates that every person arrested must be informed of the grounds for arrest without delay. This is not a mere procedural formality but a substantive safeguard against arbitrary detention.
"The mandate of Article 22 would be satisfied only if the grounds for arrest are communicated to the near relative of the arrestee."
The Court cited Kasireddy Upender Reddy to clarify that informing the accused alone is insufficient. The requirement extends to the near relative to ensure transparency and prevent abuse. The case diary, though containing details of the recovery and investigation, was silent on any communication to the petitioner’s family. This omission was fatal.
The Court rejected the prosecution’s argument that the gravity of the offence overrides procedural compliance. It emphasized that the legality of arrest is a threshold issue - if the arrest is illegal, the entire chain of custody and prosecution is compromised. The Court further noted that the petitioner had been in custody for over ten months without the procedural safeguards being met, which compounded the violation.
The Verdict
The petitioner won. The Court held that the arrest was illegal due to non-compliance with Article 22(1) and Section 47 of the BNSS, and therefore granted regular bail. The Court directed the petitioner’s release on bond with specific conditions to ensure cooperation with the investigation.
What This Means For Similar Cases
Arrest Is Not Automatic, Even in NDPS Cases
- Practitioners must challenge arrests in drug cases where grounds were not communicated to the accused or their relative
- Bail applications under BNSS Section 483 should cite Kasireddy Upender Reddy and Pankaj Bansal as binding precedent
- Courts cannot condone procedural lapses merely because the offence is serious
Documentary Silence Equals Legal Invalidity
- Case diaries must explicitly record communication of arrest grounds to the accused and a near relative
- Absence of such entries creates an irrebuttable presumption of illegality
- Oral testimony by police officers cannot substitute for documentary proof under Section 47 BNSS
Procedural Compliance Is Non-Negotiable
- Bail cannot be denied on grounds of gravity of offence if the arrest itself is tainted
- The burden lies on the State to prove compliance with Article 22 and BNSS Section 47
- Failure to comply renders the entire investigation suspect and justifies immediate release on bail
