The Kerala High Court has reaffirmed that compliance with Article 22(1) of the Constitution is not a procedural formality but a fundamental right, particularly in NDPS cases where the quantity of contraband determines the bailability of the offence. The judgment sets a clear standard for law enforcement: written communication of arrest grounds, including the exact quantity of seized narcotics, is mandatory. Failure to comply invalidates the arrest and entitles the accused to bail.
Background & Facts
The Dispute
The petitioner, Vishnudath @ Vava, was arrested on 17.06.2024 by the Chathannur Excise Range Office, Kollam, for alleged possession and transportation of 23.930 kilograms of ganja. He faces charges under Sections 20(b)(ii)(C), 25, 8(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleges that the quantity seized constitutes a commercial quantity, making the offence non-bailable. The petitioner contends that he was never informed of the grounds of his arrest in writing, nor was the quantity of ganja communicated to him at the time of arrest.
Key Facts
- The petitioner was arrested on 17.06.2024 during a raid at Parippalli Village, Kollam District
- A seizure memo (Annexure-4) records the recovery of 23.930 kilograms of ganja
- The arrest memo and arrest intimation issued to the petitioner only state that he was arrested for "possession and transportation of ganja" without specifying the quantity
- No written grounds of arrest were provided to the petitioner or his family members at the time of arrest or within any reasonable time thereafter
- The petitioner was produced before a Magistrate on 18.06.2024 and remanded to judicial custody
- He filed Bail Application No. 1366/2025 before the High Court on 28.01.2025, which was dismissed on 31.01.2025 (Annexure-1)
- A subsequent bail application (No. 7622/2025) was dismissed on 09.07.2025 (Annexure-2)
- The petitioner filed the present application (B.A. No. 3171/2026) on 24.06.2026, reiterating the violation of Article 22(1)
Procedural History
- 17.06.2024: Arrest of petitioner by Chathannur Excise Range Office
- 18.06.2024: Production before Magistrate; remanded to judicial custody
- 28.01.2025: First bail application filed before High Court (B.A. No. 1366/2025)
- 31.01.2025: First bail application dismissed by High Court
- 09.07.2025: Second bail application dismissed (B.A. No. 7622/2025)
- 24.06.2026: Present bail application (B.A. No. 3171/2026) filed and heard
The Parties' Positions
For the Petitioner
The petitioner’s counsel argued that:
- The arrest memo and intimation failed to specify the quantity of ganja, rendering the communication of grounds incomplete and ineffective
- The absence of written grounds violates Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023
- The Supreme Court decisions in Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), and Mihir Rajesh Shah v. State of Maharashtra establish that written communication of grounds is mandatory
- The Kerala High Court’s own precedents in Yazin S. v. State of Kerala, Rayees R.M. v. State of Kerala, and Vishnu N.P. v. State of Kerala require specification of quantity in NDPS cases
- The filing of a charge sheet or cognizance by the court cannot cure a constitutional violation at the stage of arrest
For the Respondent/State
The Public Prosecutor contended that:
- The arrest memo and intimation were duly issued
- The quantity of ganja is recorded in the seizure memo and available in the case diary
- The petitioner had earlier approached the court on the same ground and was denied relief
- The arrest was lawful under Chapter V of the BNSS
- The failure to mention quantity in the intimation is a technical irregularity, not a constitutional violation
Relief Sought
The petitioner seeks release on bail on the ground that his arrest and remand are illegal due to non-compliance with Article 22(1) and Section 47 of the BNSS. He requests immediate release subject to reasonable bail conditions.
The Legal Issue
The central question was whether the failure to communicate in writing the exact quantity of ganja seized at the time of arrest constitutes a violation of Article 22(1) of the Constitution and Section 47 of the BNSS, thereby rendering the arrest illegal and entitling the accused to bail.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on binding Supreme Court precedents: Pankaj Bansal v. Union of India (2024) 7 SCC 576, Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254, and Mihir Rajesh Shah v. State of Maharashtra (2025 SCC OnLine SC 2356), which hold that written communication of grounds of arrest is mandatory and non-negotiable. They emphasized that in NDPS cases, the quantity of contraband is determinative of bailability and must be communicated to enable the accused to understand the nature and gravity of the charge. The Kerala High Court’s own decisions in Yazin S., Rayees R.M., and Vishnu N.P. were cited to show that this requirement is settled law in the jurisdiction. The counsel argued that the arrest memo’s vague reference to "possession of ganja" without quantity is legally insufficient.
For the Respondent
The Public Prosecutor argued that the arrest was lawful under the BNSS and that the quantity was recorded in the seizure memo and case diary, which were accessible to the accused. He contended that the petitioner had previously raised the same ground and been denied relief, and that the technical omission does not vitiate the arrest. He relied on State of Karnataka v. Sri Darshan (2025 SCC OnLine SC 1702) to argue that substantial compliance suffices unless prejudice is shown. However, he did not produce any evidence that the quantity was orally communicated to the petitioner at the time of arrest.
The Court's Analysis
The Court undertook a comprehensive review of constitutional and statutory obligations under Article 22(1) and Section 47 of the BNSS. It held that the right to be informed of the grounds of arrest is not a procedural formality but a fundamental safeguard against arbitrary detention. The Court observed:
"The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement."
It noted that the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra had unequivocally held that grounds of arrest must be communicated in writing in the language understood by the arrestee, and that non-supply prior to production before the Magistrate is not permissible unless done within two hours before such production. The Court found that no such written communication occurred in this case.
The Court further emphasized the unique nature of NDPS cases, where the quantity of contraband determines whether the offence is bailable or non-bailable, and whether it falls under small, intermediate, or commercial quantity categories. It held:
"In NDPS cases, specification of quantity of the contraband seized is mandatory for effective communication of grounds of arrest."
The Court rejected the State’s reliance on Sri Darshan, distinguishing it on facts: that case involved bail cancellation after charge sheet filing, whereas this case concerned the legality of the initial arrest. The Court also dismissed the argument that prior dismissal of bail applications bars relitigation, noting that the legal position had evolved significantly after the earlier orders.
The Court concluded that the arrest memo’s failure to mention the quantity of ganja rendered the communication of grounds incomplete and ineffective. Since the burden lies on the State to prove compliance, and no evidence was adduced that the quantity was orally communicated, the arrest and subsequent remand were held to be illegal.
The Verdict
The petitioner succeeded. The Court set aside the earlier bail orders dated 31.01.2025 and 09.07.2025, declared the arrest and remand illegal, and granted bail on the following conditions: (i) execution of a personal bond of Rs. 1,00,000 with two solvent sureties of like amount each; (ii) cooperation with investigation; (iii) appearance before the investigating officer every Saturday between 10.00 a.m. and 11.00 a.m.; (iv) no commission of similar offences; (v) no contact with prosecution witnesses; (vi) no departure from Kerala without court permission; and (vii) any application for modification of bail conditions to be filed in the jurisdictional court. The petitioner shall be released forthwith upon compliance.
What This Means For Similar Cases
Written Grounds of Arrest Are Non-Negotiable in NDPS Cases
- Practitioners must now insist on written arrest memos containing the exact quantity of contraband in all NDPS cases
- Oral communication alone is insufficient unless corroborated by contemporaneous evidence and done within two hours before production before the Magistrate
- Failure to include quantity renders the arrest illegal, regardless of the strength of the prosecution case
Burden of Proof Shifts to the Investigating Agency
- The State bears the burden to prove compliance with Article 22(1) and Section 47 BNSS
- Absence of written grounds, even if the quantity is recorded in the seizure memo or case diary, will not suffice
- Courts will not validate arrests merely because the charge sheet was filed or cognizance taken
Precedents from Other Jurisdictions Are Binding
- Kerala HC has affirmed that Supreme Court rulings in Mihir Rajesh Shah, Pankaj Bansal, and Prabir Purkayastha are binding even in NDPS cases
- Lower courts cannot rely on outdated interpretations or dismiss constitutional violations as "technical"
- Any bail application challenging arrest on Article 22(1) grounds must be heard afresh if new precedents have emerged since the last hearing
