Arrest ‘vitiated’ without written intimation to relatives: Kerala High Court grants bail to MDMA case accused

The high court granted bail to the accused while directing the respective superintendent of the district jail to release him.

No communication to relatives in writing

• It is placed on record that the grounds of arrest were communicated to the accused. However, the grounds of arrest were informed to the relatives over the phone only, and not in writing.
• The court emphasised that one Supreme Court, which pointed out that grounds of arrest should not only be provided to the arrestee but also to his family members and relatives to allow them to make necessary arrangements for securing the release of the person arrested at the earliest possible opportunity.
• It was also mentioned that communication of the grounds of arrest to the relative ensures that the mandate of Article 22 (1) is meaningful and effective.
• The evidence placed on record prima facie connects the petitioner with the crime.
• However, since the petitioner has raised a question of the absence of communication on the grounds of his arrest, this issue should be considered.
• If the grounds of arrest are not communicated to the accused, the absence of the same would also make the arrest illegal.
• The arrest is made after some of the major Supreme Court rulings in this regard, which hold that the communication in writing is mandatory.
• The requirement of informing a person of the grounds of his arrest is a mandatory requirement as provided in Article 22(1) of the Constitution and Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
• Section 47 of the BNSS provides that every police officer who arrests any person without a warrant should communicate to him the grounds for such arrest.

‘Grounds of arrest communicated or not’

• Appearing for the petitioner, advocate P Mohamed Sabah argued that his client has been in custody since January 23, and the grounds of arrest were not communicated as per the law at the time of his arrest.
• Public Prosecutor Sreeja V, on the contrary, opposed the bail plea and submitted that the grounds of arrest were duly communicated to the petitioner.

Background

• One of the accused persons was found in possession of 1.480 grams of methylenedioxymethamphetamine or MDMA, a drug with stimulant and hallucinogenic effects, on January 22 at about 6.50 am in the quarters located upstairs on the building of the CPM branch committee in Karipur.
• The other three accused were found in possession of 39.110 grams of MDMA, which was concealed in the sunshade of a building named Achappas Villa within the same compound, intended for sale.
• This MDMA was procured from the petitioner for the purpose of supplying to another accused.
  It was placed on record that a total of 40.590 grams of MDMA were recovered from the said location.

‘Bail if grounds not communicated’

In another unrelated case, a Delhi court granted bail to a retired Navy officer accused of sexually assaulting a woman on the false promise of marriage after observing that the investigating officer failed to communicate his ‘grounds of arrest‘, but only communicated the “reasons of arrest”.

It was noted by the Additional Sessions Judge Virender Kumar Kharta of Tis Hazari Court, that the investigating officer had neither explained the basic facts of the case to the accused nor what necessitated the arrest.

“In the grounds of arrest given by the IO (investigating officer), the IO has not explained all the basic facts of the case to the accused/applicant nor has she explained as to what necessitated the arrest of the accused/applicant,” the court held in its February order.

It was claimed by the petitioner that the relationship between the accused and the woman was consensual in nature, while the survivor claimed that the accused had sexual intercourse with her on several occasions on the false promise of marriage.

It was pointed out by the petitioner’s counsel that at the time of arrest, the investigating officer had given the reasons of arrest, and she had not given the grounds of arrest to the accused, though the heading to the document has been given as ‘grounds of arrest’.