The Kerala High Court has affirmed that failure to communicate the grounds of arrest to an accused’s relative renders the arrest illegal under Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023. This ruling reinforces the mandatory nature of procedural safeguards even in serious drug offences, and establishes that technical compliance with arrest procedures cannot override constitutional rights.
Background & Facts
The Dispute
The petitioner, Arjun V Nath, aged 32, was in judicial custody in connection with Crime No. 50/2026 of Cheranalloor Police Station, Ernakulam, when he was produced before a Magistrate under a production warrant issued for Crime No. 72/2026 of Thrikkakara Police Station. The latter case involved possession of 0.716 kg of MDMA, a controlled substance under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Although no formal arrest was recorded, the police were granted custody for three days following his production, after which he was remanded to judicial custody.
Key Facts
- The petitioner was already in judicial custody since 12.02.2026 in Crime No. 50/2026.
- On 12.02.2026, a remand application was filed in Crime No. 72/2026 seeking custody of the petitioner under Section 302 of BNSS.
- A production warrant was issued and the petitioner was produced before the Magistrate on the same date.
- Police custody was granted for three days (12.02.2026 to 15.02.2026).
- After police custody, the petitioner was remanded to judicial custody on 15.02.2026.
- No formal arrest memo was prepared or signed.
- The grounds of arrest were not communicated in writing to the petitioner or his relatives.
- Section 50 notice under the NDPS Act was issued on 12.02.2026.
- Section 57 report was submitted on 15.02.2026.
- The petitioner’s family was not informed of the reason for his production or custody in Crime No. 72/2026.
Procedural History
- 12.02.2026: Petitioner produced before Magistrate under production warrant; police custody granted.
- 15.02.2026: Police custody ended; petitioner remanded to judicial custody.
- 24.04.2026: District and Sessions Court issued order on custody matters.
- 01.07.2026: Bail application filed under Section 483 of BNSS.
- 03.07.2026: High Court delivered judgment on bail application.
The Parties' Positions
For the Petitioner: The learned counsel argued that the failure to communicate the grounds of arrest to the petitioner’s relatives violated Article 22(1) and Section 47 of BNSS. Reliance was placed on Mihir Rajesh Shah v. State of Maharashtra, Kasireddy Upender Reddy v. State of Andhra Pradesh, and Alvin Riby v. State of Kerala to establish that communication to relatives is mandatory for the arrest to be lawful.
For the Respondent: The Public Prosecutor contended that since no formal arrest was recorded, the requirement to communicate grounds of arrest did not arise. Reliance was placed on Shanwin Shaji v. State of Kerala, which held that where no arrest is recorded, the obligation to inform relatives does not trigger.
Relief Sought
The petitioner sought regular bail on the ground that his arrest was illegal due to non-communication of grounds to his relatives, and that continued custody violated his constitutional rights.
The Legal Issue
Whether the failure to communicate the grounds of arrest to the relative of an accused, who was produced under a production warrant and placed in police custody without a formal arrest memo, renders the arrest illegal under Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023?
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that even in cases where formal arrest is not recorded, the act of taking an accused into police custody under a production warrant constitutes a deemed arrest. Citing Kasireddy Upender Reddy and Vihaan Kumar v. State of Haryana, it was submitted that Article 22(1) mandates not only communication to the arrestee but also to his relatives to ensure meaningful enforcement of the right. The absence of such communication, regardless of technicalities, renders the detention unlawful. The counsel emphasized that the Supreme Court has consistently held that procedural compliance is non-negotiable in personal liberty matters.
For the Respondent
The Public Prosecutor relied on Shanwin Shaji v. State of Kerala, arguing that since no formal arrest was recorded, the statutory obligation under Section 47 of BNSS was not triggered. It was submitted that production under a warrant under Section 302 of BNSS is a procedural step for custody transfer, not an arrest, and therefore the requirement to inform relatives does not apply. The prosecution further contended that the Section 50 notice under the NDPS Act served as sufficient notice of the offence.
The Court's Analysis
The Court rejected the prosecution’s narrow interpretation of arrest. It held that while a formal arrest memo may not have been prepared, the petitioner was taken into police custody for three days pursuant to a production warrant and remand order. This constituted a deemed arrest under the practical realities of custodial control. The Court observed:
"The mandate of Article 22(1) is not a technicality but a constitutional safeguard. When an accused is removed from one custody to another for investigation, and placed under police control, the right to be informed of the grounds of arrest extends to his family to enable them to seek legal recourse or bail."
The Court distinguished Shanwin Shaji on the ground that it involved a situation where no custody was granted at all. Here, police custody was granted, remand was ordered, and the accused was subjected to investigative control. The Court further relied on Vihaan Kumar, which directed Magistrates to ensure accused persons are informed of grounds of arrest upon production, and extended this principle to relatives.
The Court noted that Kasireddy Upender Reddy explicitly held that failure to inform relatives renders the arrest illegal, regardless of whether the accused was informed. The Court concluded that the State’s failure to communicate the grounds of arrest to the petitioner’s family was a violation of Article 22(1) and Section 47 of BNSS, and that this violation was not cured by the issuance of a Section 50 notice, which pertains to search and seizure, not arrest notification.
The Court emphasized that the right to be informed is not a formality but a substantive protection against arbitrary detention, especially in cases involving serious offences where the risk of prolonged custody is high.
The Verdict
The bail application was allowed. The petitioner shall be released on bail upon executing a bond of Rs. 1,00,000 with two solvent sureties of the like amount each. He shall cooperate fully with the investigation, appear before the investigating officer every Saturday between 10.00 a.m. and 11.00 a.m., not commit any further offence, not contact prosecution witnesses, and not leave the State of Kerala without court permission. Any application for modification or cancellation of bail shall be filed before the jurisdictional court.
What This Means For Similar Cases
Arrest by Custody Equals Arrest by Memo
- Practitioners must now treat any transfer of custody under Section 302 of BNSS followed by police custody as a deemed arrest, triggering the obligation to inform relatives.
- Even if no arrest memo is signed, if the accused is physically taken into police control for investigation, the constitutional requirement under Article 22(1) applies.
- Failure to notify relatives cannot be excused on grounds of technicality or procedural oversight.
Procedural Compliance Is Non-Negotiable in NDPS Cases
- The NDPS Act does not override constitutional safeguards. Section 50 notices do not substitute for arrest notification.
- Courts will not tolerate procedural lapses in personal liberty matters, even in serious drug cases.
- Bail applications based on violation of Article 22(1) are now a viable and strong ground, especially where relatives were kept in the dark.
Judicial Scrutiny of Production Warrants Is Increasing
- Magistrates must now ensure that when issuing production warrants under Section 302, they record whether the accused is being formally arrested or merely produced.
- If custody is granted, the court must ensure that grounds of arrest are communicated to the accused and his family.
- This judgment sets a new standard for judicial oversight in custody transfers between jurisdictions.
