The Kerala High Court has delivered a landmark ruling affirming that the failure to communicate the written grounds of arrest - including the precise quantity of contraband in NDPS cases - renders the arrest illegal and mandates immediate release. This judgment reinforces the non-negotiable nature of Article 22(1) of the Constitution and establishes a clear, enforceable standard for police compliance in drug-related arrests.
Background & Facts
The Dispute
The petitioners, Sudin Lal and Akshay M, were arrested on 18 August 2025 from a vehicle in Malappuram District for possession of 54.08 grams of MDMA. They were charged under Section 22(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The arrest was made without a warrant, and the police claimed to have communicated the grounds of arrest to the accused and their relatives.
Procedural History
- 18 August 2025: Arrest made by Vengara Police Station; accused taken into custody
- 28 October 2025: Bail application filed before Special Court (SC/ST Act & NDPS), Manjeri
- 28 November 2025: Special Court rejected bail application, citing seriousness of offence and prima facie evidence
- 27 January 2026: Bail application filed in Kerala High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023
Relief Sought
The petitioners sought regular bail on the ground that the grounds of arrest were not properly communicated, particularly the quantity of MDMA seized, thereby violating Article 22(1) of the Constitution and Section 47 of the BNSS.
The Legal Issue
The central question was whether the failure to communicate the quantity of contraband in writing to the arrested person, as part of the grounds of arrest under Section 47 of the BNSS and Article 22(1), renders the arrest illegal and necessitates immediate release, even if the charge sheet has been filed.
Arguments Presented
For the Petitioner
The learned counsel argued that the arrest memo provided to the petitioners omitted the quantity of MDMA, which is critical to determine whether the offence is bailable or non-bailable under the NDPS Act. Relying on Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), and Mihir Rajesh Shah v. State of Maharashtra, the petitioner contended that written communication of grounds - including quantity - is mandatory, not optional. The absence of this information deprived the accused of the ability to challenge the nature of the offence or seek bail effectively.
For the Respondent
The Senior Public Prosecutor submitted that the grounds of arrest were communicated orally and in writing to the relatives, and that the quantity was mentioned in the FIR and case diary. He argued that substantial compliance suffices under State of Karnataka v. Sri Darshan and that the filing of the charge sheet validated the arrest. He further contended that technicalities should not override the gravity of drug trafficking offences.
The Court's Analysis
The Court undertook a comprehensive review of recent Supreme Court precedents, distinguishing between cases where substantial compliance was accepted and those where strict adherence was mandated. It emphasized that Article 22(1) is not a procedural formality but a fundamental safeguard against arbitrary detention.
"The right to be informed of the grounds of arrest flows from Article 22(1) of the Constitution, and any infringement of this fundamental right would vitiate the process of arrest and remand."
The Court noted that in NDPS cases, the quantity of contraband is determinative of the offence’s severity, bail eligibility, and potential punishment. Without knowing whether the quantity falls under small, intermediate, or commercial category, the accused cannot meaningfully prepare a defence or apply for bail. The Court held that while oral communication may suffice temporarily, written communication - including the exact quantity - is mandatory and must be provided within two hours prior to production before the Magistrate, as per Mihir Rajesh Shah.
The Court further rejected the State’s reliance on Sri Darshan, distinguishing it on facts: that case involved bail cancellation after charge sheet filing, whereas here, the arrest itself was defective from inception. The Court held that filing a charge sheet cannot cure a constitutional violation at the stage of arrest.
The Court also affirmed the Kerala High Court’s own prior rulings in Yazin S. v. State of Kerala and Vishnu N.P. v. State of Kerala, which require the quantity to be specified in the arrest memo. The burden, the Court reiterated, lies squarely on the investigating agency to prove compliance.
The Verdict
The petitioners won. The Court held that failure to communicate the quantity of contraband in writing as part of the grounds of arrest violates Article 22(1) and renders the arrest illegal. The petitioners were directed to be released forthwith from judicial custody.
What This Means For Similar Cases
Written Grounds Must Include Contraband Quantity
- Practitioners must now challenge arrests in NDPS cases where the arrest memo lacks the exact quantity of seized drugs
- Bail applications should cite Mihir Rajesh Shah and Vishnu N.P. to argue that absence of quantity invalidates the arrest
- Police records must be scrutinized for written communication of quantity - not just oral or relative-based intimation
Burden of Proof Shifts to Investigating Agency
- The State must produce signed arrest memos with quantity, language, and time of communication
- Absence of such documentation creates a presumption of violation, which the State must rebut
- Courts will no longer accept general assertions of compliance without documentary proof
Arrest Cannot Be Validated by Later Procedural Steps
- Filing of charge sheet, cognizance, or framing of charges cannot cure an illegal arrest
- Any remand based on such an arrest is void ab initio
- Accused must be released immediately upon proof of non-compliance, regardless of case stage
