Court’s Decision
The Kerala High Court allowed bail in seven out of nine bail applications filed under the BNSS, 2023, despite the rigours of Section 37 of the NDPS Act, on the ground that the petitioners were not informed of the grounds of arrest as mandated under Article 22(1) of the Constitution and Section 52(1) of the NDPS Act. The Court held that “non-communication of grounds for arrest would render the detention illegal, overriding statutory restrictions under the NDPS Act.” Two applications were dismissed where grounds of arrest had been duly communicated.
Facts
Multiple petitioners, accused of possession of commercial quantities of narcotic drugs (MDMA, Methamphetamine, Ganja) under the NDPS Act, were in prolonged custody and sought bail under BNSS, claiming violations of their fundamental rights under Article 21 and 22. The prosecution opposed, citing the bar under Section 37 NDPS Act. Petitioners argued that grounds for arrest were not communicated in writing or effectively, making the arrests illegal.
Issues
- Whether prolonged custody without trial entitles an accused under the NDPS Act to bail despite Section 37 NDPS.
- Whether non-communication of grounds for arrest at the time of arrest under Article 22(1) and Section 52(1) of the NDPS Act renders detention illegal, entitling the accused to bail.
Petitioner’s Arguments
The petitioners argued that:
- They were falsely implicated and innocent.
- No materials connected them with the alleged offences.
- They were not informed of the grounds for arrest in compliance with Article 22(1), violating their constitutional rights.
- Prolonged custody without trial violated Article 21, entitling them to bail.
Respondent’s Arguments
The State contended:
- Petitioners were found in possession of commercial quantities of narcotic drugs, attracting the rigour of Section 37 NDPS.
- The prosecution opposed bail, arguing there was sufficient material indicating guilt.
- The grounds for arrest were communicated verbally and noted in the case diary and related documents.
- The restrictions under NDPS prevail over general bail considerations due to the nature of the offence.
Analysis of the Law
- Section 37 NDPS Act restricts bail unless the court is satisfied the accused is not guilty and is unlikely to commit offences on bail.
- Article 22(1) of the Constitution and Section 52(1) NDPS require immediate communication of grounds for arrest.
- The Court noted the Supreme Court’s decisions:
- State of Kerala v. Rajesh (2020): Strict compliance under Section 37 NDPS.
- Ankur Chaudhary (2024): Prolonged incarceration violates Article 21.
- Mohit Aggarwal (2022): Prolonged custody alone is insufficient for bail under NDPS.
- Pankaj Bansal (2024), Prabir Purkayastha (2024), Vihaan Kumar (2025): Grounds for arrest must be communicated effectively, and non-compliance violates Article 22(1).
Precedent Analysis
The Court harmonised Mohit Aggarwal (three-judge bench) with Ankur Chaudhary and clarified that under Vihaan Kumar, communication of grounds for arrest need not always be in writing but must be effective. Non-compliance with Article 22(1) would vitiate the arrest, entitling bail despite Section 37 NDPS, as held in Vihaan Kumar and Kasireddy Upender Reddy.
Court’s Reasoning
- On prolonged custody: It is not a ground for bail under NDPS by itself due to Mohit Aggarwal.
- On communication of grounds for arrest:
- If the grounds are not effectively communicated to the accused and their relatives, the arrest is illegal.
- The nature of the NDPS Act does not override constitutional safeguards.
- Detailed ten-point principles for compliance with Article 22(1) were reiterated.
- Evaluating each bail application, the Court found illegal arrest in seven cases due to non-communication and compliance in two cases where specific grounds were conveyed and acknowledged.
Conclusion
The Kerala High Court:
- Granted bail to seven petitioners on bonds of Rs 1,00,000 with two sureties each.
- Imposed conditions: cooperation with trial, non-tampering with evidence, no similar offences, and restriction on travel outside Kerala.
- Dismissed bail in two cases where grounds of arrest were properly communicated, upholding Section 37 NDPS.
- Clarified that violation of Articles 21 and 22 overrides statutory restrictions on bail under NDPS.
Implications
- Reinforces that communication of grounds of arrest under Article 22(1) is mandatory, and non-compliance vitiates arrest even under stringent statutes like NDPS.
- Clarifies that prolonged custody alone is insufficient for bail under NDPS, but illegal arrest can override statutory bars.
- Directs law enforcement agencies to strictly adhere to constitutional requirements during arrest under the NDPS Act.
Brief Note on Cases Referred
- State of Kerala v. Rajesh (2020): Clarified twin conditions under Section 37 NDPS for bail.
- Ankur Chaudhary (2024): Stressed prolonged detention violating Article 21.
- Mohit Aggarwal (2022): Held prolonged custody not sufficient alone for bail under NDPS.
- Pankaj Bansal (2024), Prabir Purkayastha (2024), Vihaan Kumar (2025): Clarified the mandatory requirement to communicate grounds for arrest and the consequence of non-compliance.
- Kasireddy Upender Reddy (2025): Confirmed procedural compliance under Article 22(1).
FAQs
1. Can an accused under the NDPS Act get bail solely on the ground of prolonged custody?
No, as per Mohit Aggarwal, prolonged custody alone does not entitle bail under NDPS if the rigours of Section 37 are not satisfied.
2. Does non-communication of grounds for arrest override NDPS restrictions on bail?
Yes, the Kerala High Court held that non-communication of grounds under Article 22(1) and Section 52(1) vitiates arrest, entitling the accused to bail despite Section 37 NDPS.
3. Is written communication of grounds mandatory during arrest under Article 22(1)?
While written communication is advisable, it is not mandatory, but effective communication enabling the accused to understand the grounds is necessary.