Failure to inform relatives of arrest grounds before transit remand vitiates arrest, Kerala High Court holds in NDPS case

The applicants were Accused Nos. 6, 4 and 7 respectively in O.R. No. 9/2026 registered by the Narcotics Control Bureau, Kochi, for offences under Sections 8(c), 20(b)(ii)(C), 23, 25, 27A, 28 and 29 of the NDPS Act.

The prosecution alleged recovery of 604 grams of charas from the residence of Accused No. 1 and, pursuant to information allegedly disclosed by him, recovery of 36.735 kilograms of hydroponic cannabis and 3.942 kilograms of charas from a flat at Greater Noida, Uttar Pradesh, where the applicants were present.

The applicants were apprehended in Delhi on 12 June 2026 and produced before the Judicial First Class Magistrate, Patiala House Courts, New Delhi, on the same day, where a transit warrant was obtained.

They were thereafter brought to Kochi and produced before the Sessions Court, Ernakulam, on 14 June 2026.

Whether compliance with Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS must be assessed at the time of the accused’s first production before the nearest Magistrate, even where that production is for obtaining transit remand, or only before the jurisdictional Magistrate?

Whether failure to communicate the grounds of arrest to the accused’s relative or friend before such first production vitiates the arrest and entitles the accused to bail?

Whether a delay in communicating the grounds of arrest to a relative, notwithstanding communication of the grounds to the arrestee, constitutes a violation of Article 22(1) and Section 48 of the BNSS?

Article 21 and Article 22(1) of the Constitution protect personal liberty and require that an arrested person be informed of the grounds of arrest and be permitted to communicate with a relative, friend or other nominated person.

Section 47 of the BNSS reinforces the obligation to furnish the grounds of arrest to the arrestee, while Section 48 requires intimation of the arrest and place of detention to a relative, friend or other nominated person.

Relying on Joginder Kumar v. State of U.P., the Court held that communication with a relative or friend is an integral safeguard and that the Magistrate must verify compliance; D.K. Basu v. State of West Bengal similarly requires intimation to a relative or friend as soon as practicable and a corresponding custody record.

The Court applied 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 for the rule that meaningful communication of the grounds of arrest to both the arrestee and the relevant relative or nominated person is constitutionally mandatory, and that non-compliance may invalidate the arrest.

Sections 45, 58 and 187 of the BNSS, read with Article 22(2), require production before the nearest Magistrate and facilitate transit remand; relying on Priya Indoria v. State of Karnataka, Vishal Manohar Mandrekar v. State of Telangana, and Gautam Navlakha v. National Investigating Agency, the Court held that transit remand is police custody and cannot postpone constitutional scrutiny of the arrest until production before the jurisdictional Magistrate.

The Court held that the first Magistrate before whom an arrested person is produced—whether or not that Magistrate is territorially competent—is required to examine the legality of the arrest and compliance with Article 22(1).

Since transit remand involves handing the accused over to police custody, constitutional safeguards could not be deferred until production before the Ernakulam court.

Applying this principle, the Court found that the prosecution had failed to establish that the relatives of Accused Nos. 4 and 7 were informed of the grounds of arrest before their production in New Delhi.

The documentary inconsistencies and the silence of the remand reports supported the applicants’ case, resulting in total non-compliance with Section 48 of the BNSS.

As to Accused No. 6, the prosecution bore the burden of proving compliance.

In the absence of documentary material establishing production at 6:45 p.m., the Court accepted the applicant’s version that he was produced at 2:45 p.m.; the WhatsApp communication at 3:01 p.m. was therefore subsequent to production.

Even assuming the prosecution’s timing, the Court held that the thirteen-hour delay in communicating the grounds to the relative violated the requirement that such communication occur “as soon as may be” and “forthwith”.

It held that Article 22(1) and Sections 47–48 of the BNSS must be complied with before the accused’s first production before the nearest Magistrate, including production for transit remand.

Failure to communicate the grounds of arrest to the relatives or friends of Accused Nos. 4, 6 and 7 rendered their arrests unconstitutional and legally vitiated.

The three bail applications were accordingly allowed, and the applicants were directed to be released on executing bonds of ₹1,00,000 each with two solvent sureties for the like amount, subject to cooperation with the investigation, weekly appearance before the Investigating Officer, non-commission of similar offences, non-tampering with evidence or witnesses, and a restriction on leaving Kerala without the trial court’s permission.