Plea Of Non-Furnishing Of Grounds Of Arrest Raised Only In Subsequent Bail Applications Indicates No Prejudice In Defending Case: Madras High Court

The Court was hearing a batch of criminal original petitions filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail in prosecutions under the Narcotic Drugs and Psychotropic Substances Act involving commercial quantities of contraband. The petitions arose from cases pending before Special Courts constituted for the trial of NDPS offences in Chennai.

A Bench of Justice C. Kumarappan, while examining the petitioners’ contention regarding non-furnishing of the grounds of arrest, observed: “In the above case also, as in the other connected cases referred to above, the plea regarding non-furnishing of the grounds of arrest was not raised in the first instance but was taken only in the subsequent bail applications. This clearly indicates that, at the time of filing the initial bail applications, the petitioners did not suffer any impediment or difficulty in effectively defending their case.”

Advocate K. Subburaj appeared for the petitioners, while S. Vinoth Kumar, Government Advocate, represented the respondents.

Background

The petitions arose from multiple prosecutions under the NDPS Act involving alleged transportation and possession of commercial quantities of narcotic substances, including ganja and heroin. The accused persons had been arrested in different cases and were facing trial before Special Courts constituted for NDPS offences in Chennai.

Several of the petitioners had earlier approached the High Court through multiple bail applications, which had been dismissed on previous occasions. In some cases, the accused had filed successive bail petitions after their earlier applications were rejected.

In the present petitions, the principal contention raised by the accused was that the investigating authorities had not furnished them with the “grounds of arrest” and had only provided an arrest memo at the time of arrest. Relying upon decisions of the Supreme Court, the petitioners argued that failure to provide the grounds of arrest violated constitutional safeguards and, therefore, entitled them to bail.

The prosecution opposed the petitions, contending that the accused were apprehended during operations conducted based on secret information and were found transporting commercial quantities of narcotic substances. It was argued that the accused were fully aware of the basis of their arrest and could not derive any benefit from the alleged procedural lapse.

Court’s Observation

The High Court began by examining the factual matrix of each case, including the date of arrest, the number of earlier bail applications filed by the petitioners, and the stage at which the plea regarding non-furnishing of grounds of arrest was raised.

The Court observed that in most of the cases, the accused had filed earlier bail applications without raising any objection regarding the non-furnishing of the grounds of arrest. It noted that the said plea had been raised only after a considerable lapse of time, in some instances ranging from one year to several years after arrest.

Referring to the jurisprudence developed by the Supreme Court on the requirement of informing the grounds of arrest, the Court noted that the underlying purpose of such a requirement is to enable an arrested person to understand the basis of the arrest and to effectively challenge the remand or seek bail.

The Court further examined the Supreme Court’s observations in State of Karnataka v. Sri Darshan (2025), wherein it was held that the absence of written grounds of arrest would not automatically render the arrest illegal unless the accused demonstrates actual prejudice arising from such procedural lapse.

The Court emphasised that the consistent judicial approach has been to apply a “prejudice test” in cases involving alleged procedural lapses relating to arrest. The Court observed that “the mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.”

The Bench also referred to the Supreme Court’s judgment in Mihir Rajesh Shah v. State of Maharashtra (2025), where it was clarified that the procedural framework relating to furnishing written grounds of arrest would govern arrests prospectively.

Applying these principles to the facts of the present cases, the Court observed that the arrests of the petitioners had been affected before the judgment in Mihir Rajesh Shah. Consequently, the procedural framework prescribed in that judgment could not be applied retrospectively to invalidate the arrests.

The Court further noted that in several of the cases, the accused were intercepted while transporting commercial quantities of narcotic substances and the arrests were made during the course of the alleged commission of offences. In such circumstances, the Court held that the accused could not claim that they were unaware of the basis of their arrest.

"Apart from the above, in all the cases in hand, the arrests were effected prior to the judgment of the Hon’ble Supreme Court in Mihir Rajesh Shah’s case (cited supra). Therefore, the petitioners cannot take advantage of the plea regarding non-furnishing of the grounds of arrest in all these cases, which are in the nature of flagrante delicto, and such requirement was made applicable only with effect from 06.11.2025. Hence, the grounds urged by the petitioners for grant of bail are liable to be rejected", the Court concluded. 

Conclusion

The High Court concluded that the plea regarding non-furnishing of the grounds of arrest had not been raised at the earliest stage and had been taken only in subsequent bail applications. The Court held that such conduct demonstrated that the petitioners had not suffered any impediment in effectively defending their case.

The Court further held that since the arrests in the present cases were effected before the judgment of the Supreme Court in Mihir Rajesh Shah and no demonstrable prejudice had been established, the petitioners could not claim bail solely on the ground of non-furnishing of written grounds of arrest.

Finding that the petitioners had not satisfied the requirements for the grant of bail under Section 37 of the NDPS Act, the High Court dismissed all the criminal original petitions.

Cause Title: Sundar Rao v. Union of India & Connected Cases (Neutral Citation: 2026:MHC:1100)

Appearances

Petitioners: Advocates K. Subburaj; S. Kasirajan

Respondents: S. Vinoth Kumar, Government Advocate

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