Can a WhatsApp message justify your arrest? Why Kerala High Court denied bail to this NDPS accused

Mandatory statutory requirement

• There are materials on record to connect the applicant with the crime.
• The applicant has raised a question of the absence of communication with regard to the grounds of his arrest.
• Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.
• The requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory statutory and constitutional requirement.
• Non-compliance with Article 22(1) will be a violation of the fundamental right of the accused guaranteed by the said Article.
• It will also amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution.
• The grounds of arrest were intimated to him through a WhatsApp message. Hence, there is substantial compliance.
• Therefore, the applicant is not entitled to be released on bail.

Principles of law

• The constitutional mandate of informing the arrestee of the grounds of arrest is mandatory in all offences under all statutes, including offences under the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS).
• The grounds of arrest must be communicated in writing to the arrestee in the language he understands.
• In cases where the arresting officer/person is unable to communicate the grounds of arrest in writing soon after arrest, it is done orally.
• The said grounds be communicated in writing within a reasonable time, and in any case, at least two hours prior to the production of the arrestee for the remand proceedings before the magistrate.
• In NDPS cases, specification of the quantity of the contraband seized is mandatory for effective communication of the grounds of arrest.
• In case of non-compliance of the above, the arrest and the subsequent remand would be rendered illegal and the arrestee should be set free forthwith.
• The burden is on the police to establish proper communication of the grounds of arrest.
• The filing of a chargesheet and cognisance of the order cannot validate an unconstitutional arrest.

Caught with MDMA

• On November 22, 2025, at around 10.15 am, Shameem, a resident of Malappuram district was found in possession and transportation of 95.93 grams of MDMA (Methylenedioxymethamphetamine) in a car near the Muthanga police check post.
• MDMA, commonly known as ‘ecstasy‘ or ‘molly’, is a synthetic drug with stimulant and minor psychedelic properties.
• Shameem was arrested on the same day and a case was registered against him under provisions of the NDPS Act, 1985.
• He was sent to judicial custody by a court.
• Shameem then approached the high court seeking regular bail.

Applicant’s arguments

• Advocate P Mohamed Sabah, appearing for the petitioner, submitted that the requirement of informing the arrested person of the grounds of arrest is mandatory under Article 22(1).
• He argued that the police must inform the grounds under Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and as the applicant was not furnished with the grounds of arrest, his arrest was illegal and he is liable to be released on bail.
• Section 47 of BNSS mandates that any person arrested without a warrant must be immediately informed of the grounds for their arrest and their right to bail, including arranging for sureties, ensuring transparency, and adherence to legal rights during the arrest process.
• He contended that such communication should be ordinarily in writing and in a language which is known to the arrestee.
• It was argued that failure to provide written reasons invalidates the arrest.
• He further submitted that it makes detention unlawful as it entitles the accused to bail, regardless of the intensity of the charges.

State’s submissions

• Opposing the submissions, M C Ashi, Senior Public Prosecutor, argued that all legal formalities were complied with in accordance with Chapter V (arrest of persons) of the BNSS at the time of the arrest of the applicant.
• It was submitted that the alleged incident occurred as part of the applicant’s intentional criminal acts and hence he is not entitled to bail.
• It was pointed out that the arresting grounds were communicated, and even the relative of the accused had been informed by a WhatsApp message when he refused to appear physically.
• The prosecution also presented that there was prima facie evidence existing between the accused and possession of a commercial quantity of MDMA and that the rigours of Section 37 (offences to be cognizable and non-bailable) of the NDPS Act would apply, and so bail would not be allowed.

Sumit is an intern with The Indian Express.