The High Court of Kerala has held that in cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the police must explicitly mention the quantity of the seized contraband in the written grounds of arrest furnished to the accused. The court ruled that failure to do so violates the mandatory constitutional requirements under Article 22(1), rendering the arrest and subsequent remand illegal.
The Single Bench of Justice Kauser Edappagath delivered this judgment while granting bail to an accused who had been in custody since August 2025. The court emphasized that because the quantity of contraband determines whether an offence is bailable or non-bailable under the NDPS Act, its specification is essential for the “effective communication” of the grounds of arrest.
Background
The case, Sarafudheen v. State of Kerala (BA No. 1772 of 2026), originated from Crime No. 587/2025 of Chalissery Police Station, Palakkad. On August 16, 2025, the petitioner (Accused No. 1) and two others were allegedly found in possession of 69.90 grams of MDMA. They were charged under Sections 22(c) and 29 of the NDPS Act. The petitioner had been in judicial custody since his arrest on the day of the incident.
Arguments
Counsel for the petitioner, Shri Aneesh K.R., contended that the arrest was illegal as the applicant was not furnished with the grounds of arrest, a requirement he argued was mandatory under Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Opposing the bail application, Senior Public Prosecutor Sri M.C. Ashi submitted that all legal formalities under Chapter V of the BNSS were complied with at the time of arrest. He further argued that the petitioner was not entitled to bail given the intentional nature of the criminal acts involved.
Court’s Analysis
The court examined the case diary and observed that while separate grounds of arrest were communicated to the applicant, they merely mentioned that the arrest was for “illegal possession of narcotic drugs” without referencing the specific quantity of the contraband seized.
Justice Edappagath referred to several landmark Supreme Court precedents to outline the legal framework:
- Pankaj Bansal v. Union of India: Established that written grounds of arrest must be furnished as a matter of course.
- Prabir Purkayastha v. State (NCT of Delhi): Affirmed that the right to be informed of grounds of arrest flows from Article 22(1) and infringement vitiates the arrest.
- Mihir Rajesh Shah v. State of Maharashtra: A three-judge bench held that grounds must be in writing, in a language the arrestee understands, and provided at least two hours prior to production before a Magistrate.
Specifically regarding NDPS cases, the court cited its own previous rulings in Yazin S. v. State of Kerala and Vishnu N.P. v. State of Kerala, which held that the arrest intimation must mention the quantity of contraband seized.
The court summarized the emerging legal principles:
“The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences… In NDPS cases, specification of quantity of the contraband seized is mandatory for effective communication of grounds of arrest.”
The court further noted that the burden of proving compliance with Article 22(1) lies entirely on the Investigating Agency.
Decision
The court found that the omission of the quantity in the arrest grounds meant the requirements of Article 22(1) of the Constitution and Section 47 of the BNSS were not satisfied.
“Therefore, applicant’s arrest and his subsequent remand are nonest and he is entitled to be released on bail,” the court held.
The petitioner was granted bail subject to several conditions, including the execution of a bond for ₹1,00,000/- with two solvent sureties, regular appearances before the investigating officer every Saturday, and a prohibition against leaving the State of Kerala without court permission.
Case Details:
- Case Title: Sarafudheen v. State of Kerala
- Case No: Bail Appl. No. 1772 of 2026
- Date: April 1, 2026
- Bench: Justice Kauser Edappagath
