Introduction:

In Ashique v. State of Kerala (B.A. No. 807 of 2026, 2026 LiveLaw (Ker) 139), the Kerala High Court examined an important procedural issue relating to arrest formalities under the Bharatiya Nagarik Suraksha Sanhita (BNSS). The case arose from a bail application filed by the sixth accused in a case registered under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The accused, Ashique, had been arrested in March of the previous year in connection with the NDPS case while he was already in judicial custody in another matter. His arrest in the present case was carried out through a production warrant issued under Section 302 of the BNSS, which enables courts to require the production of a person who is already lodged in prison in connection with another case. The primary issue before the Court was whether the accused must be separately informed of the grounds of arrest when he is arrested pursuant to such a production warrant. The accused argued that his arrest was illegal because the grounds of arrest were not properly communicated to him at the time of arrest, whereas the prosecution maintained that the communication requirement was already fulfilled through the production warrant issued by the court. The matter was heard by Dr. Justice Kauser Edappagath, who undertook a detailed examination of the statutory framework, the format of production warrants, and relevant precedents of the Supreme Court. The Court ultimately held that when a person already in judicial custody is formally arrested in another case pursuant to a production warrant issued under Section 302 BNSS, there is no requirement to separately communicate the grounds of arrest to the accused, as the warrant itself sufficiently informs him of the reasons for his production and arrest. However, the Court emphasized that even in such cases, it is mandatory to inform a relative or friend of the accused about the arrest and the grounds thereof. Since in the present case the authorities failed to inform the relatives of the accused, the Court held that the arrest was vitiated and granted bail to the accused subject to certain conditions.

Arguments of the Petitioner:

The petitioner, Ashique, challenged the legality of his arrest in the NDPS case on the ground that the procedural safeguards governing arrest had not been properly followed by the investigating authorities. His counsel argued that the law mandates that the grounds of arrest must be communicated to the accused at the time of arrest. According to the petitioner, this requirement is a fundamental safeguard intended to protect the liberty of individuals and ensure transparency in the criminal justice process. The petitioner contended that when he was arrested in connection with the NDPS case, the authorities failed to clearly inform him of the grounds of his arrest. This omission, according to the petitioner, amounted to a violation of his legal and constitutional rights. It was argued that merely producing the accused before the court through a production warrant was not sufficient to satisfy the requirement of informing him of the grounds of arrest. The petitioner further argued that procedural safeguards relating to arrest are particularly important in cases under the NDPS Act, which prescribes stringent punishments and strict bail conditions. Therefore, any violation of procedural requirements must be taken seriously by the courts. The petitioner also pointed out that the investigating authorities had failed to inform his relatives about the arrest and the grounds of arrest. According to him, this failure further demonstrated that the arrest was carried out in violation of established legal procedures. On these grounds, the petitioner argued that the arrest was vitiated and that he was entitled to be released on bail.

Arguments of the Prosecution:

The State opposed the bail application and defended the legality of the arrest. The prosecution submitted that the accused was already in judicial custody in connection with another criminal case when he was arrested in the NDPS case. The arrest in the present case was effected pursuant to a production warrant issued by the competent court under Section 302 BNSS. According to the prosecution, when a person is arrested on the basis of a judicial warrant, the requirement of informing the accused about the grounds of arrest is satisfied by reading out or communicating the contents of the warrant to him. The prosecution relied on the judgments of the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra and Kasireddy Upender Reddy v. State of Andhra Pradesh. In these cases, the Supreme Court had held that when an accused is arrested pursuant to a warrant issued by a court, there is no separate requirement to communicate the grounds of arrest in writing if the warrant itself is read over to the accused. The prosecution argued that although those decisions dealt with arrest warrants issued under Section 72 BNSS, the underlying principle should also apply to production warrants issued under Section 302 BNSS. The prosecution further submitted that the production warrant in the present case was issued in Form No. 37, which contains specific instructions directing the jail authorities to inform the accused of the contents of the order and to provide him with a copy of the warrant. Therefore, according to the prosecution, the accused was sufficiently informed about the reasons for his production and arrest through the warrant itself. The prosecution also pointed out that there were prima facie materials linking the accused with the NDPS offence. Consequently, the prosecution argued that the bail application should be rejected.

Court’s Analysis and Judgment:

After hearing the submissions of both sides, the Kerala High Court examined the legal framework governing arrests made through production warrants under the BNSS. The Court noted that Section 302 of the BNSS enables a court to require the production of a person who is already lodged in prison in connection with another case. The purpose of such a provision is to ensure that the presence of the accused can be secured before the court for investigation or trial in a different case. The Court observed that production warrants under Section 302 are issued in Form No. 37. This form contains a specific direction addressed to the officer in charge of the jail where the accused is lodged. The form instructs the jail authorities to inform the accused of the contents of the order and to deliver to him a copy of the warrant. The Court reasoned that this process itself constitutes communication of the reasons for the accused’s production and arrest. The Court then examined the Supreme Court judgments relied upon by the prosecution. In Mihir Rajesh Shah v. State of Maharashtra and Kasireddy Upender Reddy v. State of Andhra Pradesh, the Supreme Court had held that when a person is arrested on the basis of a warrant issued by a court, the requirement of informing the accused about the grounds of arrest is satisfied by reading out or communicating the contents of the warrant. There is no separate requirement to provide a written statement of the grounds of arrest in such circumstances. The High Court observed that although these decisions were rendered in the context of arrest warrants issued under Section 72 BNSS, the reasoning behind them could also apply to production warrants issued under Section 302 BNSS. According to the Court, both types of warrants originate from a judicial order and are communicated to the accused through an official process. Therefore, the Court held that when a formal arrest is recorded pursuant to a production warrant under Section 302 BNSS, there is no need to separately inform the accused of the grounds of arrest. The warrant itself, communicated through the jail authorities, is sufficient to satisfy the legal requirement. However, the Court emphasized that another important safeguard must still be complied with. The law requires that when a person is arrested, the authorities must inform a relative or friend of the accused about the arrest and the grounds for it. This requirement serves as an additional protection against arbitrary or secret detention and ensures transparency in the arrest process. The Court made it clear that this requirement remains mandatory even when the arrest is carried out pursuant to a production warrant. In the present case, the Court found that the authorities had failed to inform the relatives of the accused about the arrest and the grounds thereof. This failure constituted a violation of the procedural safeguards governing arrests. As a result, the Court concluded that the arrest was vitiated. The Court also noted that there were prima facie materials linking the accused to the NDPS offence. However, since the procedural violation relating to the communication of arrest to relatives had been established, the accused was entitled to relief. Accordingly, the Court allowed the bail application and directed that the accused be released on bail subject to certain conditions imposed by the Court.