Introduction:

In Shameem v. State of Kerala and Anr. (Bail Appl. No. 723 of 2026), reported as 2026 LiveLaw (Ker) 110, the Kerala High Court was called upon to examine a significant procedural safeguard in criminal law — the mandatory communication of grounds of arrest. The matter arose from a bail application filed by the sole accused in a case registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The accused was allegedly found in possession and transportation of approximately 95.93 grams of MDMA in a car near the Muthanga Police Check Post.

The arrest was effected, and a crime was registered. Challenging the legality of his detention and seeking bail, the accused contended that the statutory and constitutional requirements concerning communication of grounds of arrest had not been complied with. It was argued that such non-compliance violated Article 22(1) of the Constitution of India and Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The matter was heard by Dr. Justice Kauser Edappagath, who ultimately dismissed the bail application, holding that there was prima facie material connecting the accused to the offence and that there was substantial compliance with the mandate of communicating the grounds of arrest.

Factual Background:

The prosecution case, as reflected in the remand report, was that the accused was intercepted near the Muthanga Police Check Post while transporting 95.93 grams of MDMA in a car. Upon recovery of the contraband, the police arrested the accused and registered a case alleging offences under Section 22(c) of the NDPS Act, which pertains to possession of psychotropic substances in commercial quantity.

The NDPS Act prescribes stringent conditions for grant of bail, especially in cases involving commercial quantities of narcotic or psychotropic substances. Section 37 of the Act imposes twin conditions — the court must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

Against this statutory backdrop, the accused approached the High Court seeking bail.

Arguments on Behalf of the Applicant:

Counsel appearing for the applicant raised a two-fold challenge.

First, it was argued that the arrest was illegal due to non-compliance with the mandatory requirement of communicating the grounds of arrest. Relying on Article 22(1) of the Constitution, which guarantees that an arrested person must be informed of the grounds of arrest as soon as may be, the counsel submitted that this safeguard is not a mere formality but a fundamental right.

It was further argued that Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 reinforces this mandate by requiring communication of grounds of arrest and intimation to a relative or friend of the accused. According to the applicant, there was no proper compliance with this statutory obligation.

The defence contended that the alleged intimation to the relative through a phone call and subsequent WhatsApp message did not meet the standard of “communication” envisaged under the law. It was argued that the statute contemplates meaningful and effective communication, preferably in writing, so that the arrested person and his family are fully aware of the reasons for deprivation of liberty.

The applicant’s counsel submitted that any violation of this constitutional and statutory safeguard renders the arrest illegal. An illegal arrest, it was contended, entitles the accused to bail irrespective of the gravity of the allegations. The counsel emphasised that procedural safeguards in criminal law are the bedrock of personal liberty and must be strictly enforced.

Second, the applicant attempted to question the prosecution case on merits, contending that the materials on record did not conclusively establish conscious possession or involvement. It was argued that mere recovery from a vehicle does not automatically establish culpability without proof of knowledge and control.

On these grounds, the applicant sought release on bail.

Arguments on Behalf of the Prosecution:

The prosecution, represented by the Senior Public Prosecutor, opposed the bail application.

At the outset, it was submitted that there were prima facie materials on record connecting the accused to the offence. The quantity of MDMA recovered was substantial, and the seizure was made from the vehicle in which the accused was travelling.

The prosecution emphasised the rigours of Section 37 of the NDPS Act and argued that the applicant had failed to satisfy the twin conditions for grant of bail. In cases involving commercial quantities, bail cannot be granted as a matter of course.

With respect to the alleged non-compliance of communication of grounds of arrest, the prosecution pointed to the remand report. It was submitted that the arresting officer had called the relative of the accused and requested him to appear before the officer. However, the relative expressed unwillingness to do so. Thereafter, a WhatsApp message was sent to the relative intimating the grounds of arrest.

According to the prosecution, this amounted to substantial compliance with the statutory mandate. The law requires communication, not a rigid or ritualistic mode of communication. In the digital age, electronic communication such as WhatsApp is a recognized and effective mode of conveying information.

The prosecution therefore argued that the arrest was legal, procedural requirements were complied with, and the applicant was not entitled to bail.

The Court’s Analysis and Findings:

Justice Kauser Edappagath began by examining whether there were prima facie materials connecting the accused to the offence. The Court noted that the contraband was allegedly recovered from the car in which the accused was found and that the seizure was duly recorded. At the stage of bail, the Court is not expected to conduct a mini-trial but only to assess whether a prima facie case exists.

On perusal of the records, the Court held that there were sufficient materials to connect the accused with the alleged offence.

The Court then proceeded to consider the argument regarding communication of grounds of arrest. It observed that communication of written grounds of arrest is indeed a mandate under constitutional and statutory law. The right of an arrested person to be informed of the grounds of arrest is a fundamental safeguard against arbitrary detention.

However, the Court examined the factual matrix reflected in the remand report. It noted that the relative of the accused was contacted over the phone and asked to appear before the arresting officer. When the relative expressed unwillingness to appear, the grounds of arrest were intimated to him through a WhatsApp message.

The Court observed:

“Even though the relative was asked over the phone to appear before the arresting officer, he expressed his unwillingness to appear. Accordingly, the grounds of arrest were intimated to him through a WhatsApp message. Hence, I am of the view that there is substantial compliance. Therefore, the applicant is not entitled to be released on bail.”

The Court thus held that there was substantial compliance with the statutory mandate. It reasoned that the purpose of the requirement is to ensure that the arrested person and his family are informed about the arrest and the grounds thereof. Once that objective is achieved through a phone call followed by a WhatsApp message, the mandate cannot be said to have been violated.

The Court declined to adopt an overly technical or rigid interpretation of the requirement. Instead, it focused on whether the essence of the safeguard had been fulfilled.

Having found prima facie involvement and compliance with procedural safeguards, the Court concluded that the applicant had not satisfied the conditions for bail under the NDPS Act. Accordingly, the bail application was dismissed.