Accused Need Not Be Informed Grounds For Arrest When Formal Arrest Is Recorded As Per Warrant U/s.302 Of BNSS: Kerala High Court

The High Court made it clear that the order/warrant in Form No.37 itself is sufficient to comply with the requirement.

The High Court was considering a bail application filed by the accused booked in a case registered under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The Single Bench of Justice Kauser Edappagath held, “The order in Form No.37 is addressed to the officer in charge of the jail where the applicant is lodged. In paragraph No.3 of Form No.37, there is a specific direction to the officer-in-charge of the jail to inform the accused of the contents of the order and to deliver him the attached copy thereof. Therefore, I hold that when the formal arrest of an accused is recorded pursuant to an order/production warrant issued under Section 302 of BNSS, there is no requirement to inform him of the grounds for his arrest separately. The order/warrant in Form No.37 itself is sufficient to comply with the requirement. However, even in such cases, the communication of the grounds for arrest to the relative of the accused is mandatory.”

Reference was made to the judgments of the Apex Court in Mihir Rajesh Shah v. State of Maharashtra and Another (2025) and Kasireddy Upender Reddy v. State of Andhra Pradesh (2025).

Advocate Francis Assisi represented the Petitioner while Senior Public Prosecutor K.A. Noushad represented the Respondent.

Factual Background

The applicant and other accused persons had allegedly entered into a conspiracy and smuggled narcotic drugs. The police seized 108.9378 grams of MDMA packed in zip-lock covers. The first accused was alleged to have stored these drugs for sale inside a bag in the cupboard of a rented house and thereby committed the offences. It was the applicant’s case that he had been in custody since March 25, 2025, and the grounds of arrest were not communicated in accordance with the law at the time of his arrest.

Reasoning

Referring to the judgments of the Apex Court, the Bench held that the requirement of informing a person of the grounds for arrest is a mandatory requirement of Article 22(1) of the Constitution and Section 47 of BNSS, and absence of the same would render the arrest illegal.

The Bench noted that the applicant, who was in judicial custody in connection with another case, was produced on a production warrant pursuant to an application filed by the investigating officer to record his arrest. Accordingly, he was produced, and his arrest was recorded.

The Bench took note of the fact that in Form No.37, there was a specific direction to the officer-in-charge of the jail to inform the accused of the contents of the order and to deliver him the attached copy thereof. “In this case, since the grounds for arrest were not communicated to the relatives of the applicant in accordance with the law, the arrest stands vitiated, and the applicant is entitled to be released on bail”, it held. The Bench thus allowed the application and directed the applicant to be released on bail on executing a bond for Rs 1 lakh with two solvent sureties.

Cause Title: Ashique v. State Of Kerala (Neutral Citation: 2026:KER:19267)

Appearance

Appellant: Advocates Francis Assisi, Amrutha P S, Manju Luckose, Vinayak P.S.

Respondent: Senior Public Prosecutor K.A. Noushad

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