In a significant ruling on criminal jurisprudence and constitutional safeguards, the High Court of Kerala, presided over by Justice Dr. Kauser Edappagath, held that the statutory and constitutional mandate to communicate the grounds of arrest to an accused and their relatives applies at the very first production before the nearest Magistrate for transit remand, and cannot be deferred until production before the jurisdictional Magistrate. Holding that failure to adhere to these safeguards vitiates the arrest, the Court granted regular bail to three accused persons arrested by the Narcotics Control Bureau (NCB) in a commercial quantity drug seizure case.
Background of the Case
The matter originated from Crime O.R. No. 9/2026 registered by the Cochin Zonal Unit of the Narcotics Control Bureau. On June 10, 2026, NCB officers seized 604 grams of Charas from the residence of Accused No. 1 in Kerala. Interrogation of Accused No. 1 allegedly revealed that the contraband was sourced from a drug trafficking network based in Greater Noida, Uttar Pradesh, and that more narcotics were stored at a rented apartment.
Joint teams of NCB Cochin and Delhi Zonal Units conducted a search at the Shree Radha Sky Gardens Apartment Complex in Greater Noida (West) on June 11, 2026, leading to the alleged recovery of 36.735 kilograms of Hydroponic Cannabis and 3.942 kilograms of Charas. Consequently, the applicants—Muhammed Ashfaq C (Accused No. 6), Mikhin Mathew Gracious (Accused No. 4), and Shahul Hameed K.T (Accused No. 7)—were apprehended in Delhi in the early hours of June 12, 2026, for offences punishable under Sections 8(c), 20(b)(ii)(C), 23, 25, 27A, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The accused were produced before the Judicial First Class Magistrate at Patiala House Court, New Delhi, where a transit remand was obtained. They were then brought to Kochi on June 14, 2026, and produced before the Sessions Court, Ernakulam. The applicants approached the High Court seeking regular bail primarily on the ground that the mandatory requirements under Article 22(1) of the Constitution and Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—specifically informing their relatives of the grounds of arrest—were violated prior to their initial remand.
Arguments of the Parties
Counsel for Accused Nos. 4 and 7, Sri P. Mohamed Sabah, and counsel for Accused No. 6, Sri N. Krishna Prasad, argued that the grounds of arrest were never communicated to the relatives or friends of the accused prior to their production before the Magistrate in New Delhi. Relying on Supreme Court precedents, they contended that intimation under Section 48 of the BNSS is an indispensable component of Article 22(1) and that non-compliance renders the arrest illegal, entitling the applicants to immediate bail. For Accused No. 6, it was pointed out that while he was produced at 2:45 p.m. on June 12, his father was only sent a WhatsApp message at 3:01 p.m., amounting to an unexplained delay of 13 hours after his 2:20 a.m. arrest.
Opposing the petitions, Special Public Prosecutor for NCB, Sri R. Vinu Raj, contended that when an arrest is effected outside territorial jurisdiction and the accused is produced before the nearest Magistrate solely for transit remand, compliance with Article 22(1) and Sections 47 and 48 of the BNSS is not immediately mandatory. The prosecution maintained that these obligations arise only when the accused is produced before the jurisdictional Magistrate pursuing the case. The NCB further asserted that intimation had indeed been served on the relatives before the accused were produced before the Sessions Court in Ernakulam.
Court’s Analysis and Key Observations
Justice Kauser Edappagath framed the core question: whether the constitutional safeguards under Article 22(1) and (2), operationalised through Sections 47 and 48 of the BNSS, must be applied with reference to the nearest Magistrate where the accused is first produced, or if they are confined to the jurisdictional Magistrate.
Examining the constitutional framework, the Court observed that Article 21 and Article 22 form vital protections against arbitrary deprivation of personal liberty. The Court highlighted that the right of an arrested person to intimate a relative or friend was firmly established by the Supreme Court in Joginder Kumar v. State of U.P. and D.K. Basu v. State of West Bengal, and later codified as Section 50A in the Cr.P.C., now embodied in Section 48 of the BNSS.
Referring to recent Supreme Court rulings including Pankaj Bansal v. Union of India, Prabir Purkayastha v. State (NCT of Delhi), Vihaan Kumar v. State of Haryana, Kasireddy Upender Reddy v. State of Andhra Pradesh, and Mihir Rajesh Shah v. State of Maharashtra, the Court underscored:
“The furnishing of grounds of arrest to the detainee, and simultaneously to his relatives or friends, has thus been construed as an integral component of Article 22(1), as observed in Vihaan Kumar (supra), Kasireddy (supra), and Mihir Rajesh Shah (supra). Failure to comply with this dual requirement vitiates the arrest.”
Addressing the prosecution’s argument regarding transit remand, the Court noted that Section 45 of the BNSS allows police to pursue an accused across India, but transit remand is necessary to convey them lawfully. Citing Priya Indoria v. State of Karnataka, Vishal Manohar Mandrekar v. State of Telangana, and Gautam Navlakha v. National Investigating Agency, the Court emphasized that transit remand constitutes police custody under Section 167 of the Cr.P.C. (Section 187 of the BNSS).
The Court observed:
“A reading of Section 58 read with Section 187 of BNSS shows that the production before the Magistrate is to the nearest Magistrate and is not with respect to the jurisdictional Magistrate. Read in the same light, Sections 47 and 48 of BNSS, which deal with Article 22(1) have to be construed consistent with the mandate of Article 22(2). For Article 22(1), it cannot be a jurisdictional Magistrate, whereas for the purpose of Article 22(2), it has to be the nearest Magistrate. This is so because the fundamental aspect that has to be ascertained on production in the event of an arrest and detention is the very ‘legality’ of the arrest and not the question whether the accused is liable to be granted bail or not.”
The Court further held:
“Thus, when a person who is arrested is brought before a non-jurisdictional Magistrate even if only for the purpose of ordering a transit or transit remand, it is imperative that the grounds of arrest be communicated both to the aresstee and to his relative or friend, as mandated under Article 22(1) of the Constituiton and Sections 47 and 48 of the BNSS, prior to such production.”
Evaluating the factual matrix:
- Accused Nos. 4 and 7: Notices under Section 48 BNSS showed signatures of relatives who were admittedly in Kerala on June 12, 2026. The Court found their signatures were obtained only on June 14 at the NCB Kakkanad office, demonstrating total non-compliance prior to production in New Delhi.
- Accused No. 6: The prosecution failed to place any diary entry or record proving production took place at 6:45 p.m. instead of 2:45 p.m. Following Vihaan Kumar, where the burden lies squarely on the agency, the Court accepted the production time as 2:45 p.m., which was before the 3:01 p.m. WhatsApp message.
Addressing the exception carved out in Mihir Rajesh Shah, the Court clarified that the two-hour rule applies only to delayed written grounds to the arrestee under impractical, exceptional circumstances (such as in flagrante delicto offences). Because written grounds were already furnished to Accused No. 6 at 2:20 a.m., no exceptional ground existed to justify delaying intimation to the father by 13 hours.
Decision of the Court
Concurring that there was complete non-compliance with Article 22(1) of the Constitution read with Section 48 of the BNSS, the High Court held that the arrests of Accused Nos. 4, 6, and 7 stood vitiated.
The Court allowed all three bail applications and directed the release of the applicants on bail upon executing a bond of Rs. 1,00,000/- each with two solvent sureties, subject to conditions including cooperation with the investigation, weekly appearances before the investigating officer on Saturdays, and restrictions against leaving Kerala without trial court permission.
Case Details
Case Title: Muhammed Ashfaq C v. Union of India (with connected matters)
Case No.: Bail Appl. Nos. 3965, 4218 & 4547 of 2026
Bench: Justice Dr. Kauser Edappagath
Date: August 21, 2026
