Grounds of Arrest Must Be Communicated to Relative Before Transit Remand: Kerala High Court

The Kerala High Court, in Muhammed Ashfaq C. v. Union of India & Connected Cases, 2026:KER:66077, examined an important question concerning the protection of personal liberty during inter-State arrests: whether compliance with Article 22(1) of the Constitution and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is required before an accused is first produced before the nearest Magistrate for transit remand, or whether such compliance can wait until production before the jurisdictional Magistrate.

Justice Dr. Kauser Edappagath, by an order dated August 21, 2026, held that these safeguards must operate at the stage of the first production after arrest. A transit remand, the Court emphasised, is itself a remand involving police custody. Therefore, the Magistrate considering transit remand must be in a position to examine the legality of the arrest before authorising further custody.

The Court ultimately found non-compliance with Article 22(1) read with Section 48 BNSS in respect of all three applicants and held their arrests to be vitiated. It consequently granted them bail.

Background of the Case

The three bail applications were filed by accused Nos. 4, 6 and 7 in O.R. No. 9/2026 of the Narcotics Control Bureau (NCB), Kochi. The offences alleged against them were punishable under Sections 8(c), 20(b)(ii)(C), 23, 25, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

According to the prosecution, on June 10, 2026, at 7.45 p.m., the NCB Cochin Zonal Unit seized 604 grams of Charas from the residence of accused No. 1, where accused Nos. 2 and 3 were also allegedly present.

During interrogation, accused No. 1 allegedly disclosed that the seized contraband had been sourced from a Keralite drug-trafficking gang based in Greater Noida, Uttar Pradesh. It was further alleged that the remaining contraband was concealed at the rented premises of accused Nos. 4 and 5 in Greater Noida.

Thereafter, officials of the NCB Cochin Zonal Unit, along with officers of the NCB Delhi Zonal Unit, conducted a search at Shree Radha Sky Gardens Apartment Complex, Greater Noida (West), where accused Nos. 4, 6, 7 and 8 were present.

A search conducted on June 11 allegedly resulted in the recovery of 36.735 kg of Hydroponic Cannabis and 3.942 kg of Charas.

The applicants had remained in judicial custody since June 14, 2026. Their principal challenge in the bail proceedings was that the grounds of arrest had not been duly communicated to their relatives in accordance with Section 48 BNSS and Article 22(1) of the Constitution.

Arrest in Delhi and Transit Remand

The case had been registered by the NCB’s Cochin Unit on June 11, 2026. The applicants were apprehended in Delhi during the early hours of June 12, 2026 and were produced before the Judicial First Class Magistrate at Patiala House Court, New Delhi, on the same day.

A transit warrant was obtained, following which the accused were taken to Kochi and produced before the Sessions Court, Ernakulam, at 8.45 p.m. on June 14, 2026.

The central controversy was whether the NCB was required to communicate the grounds of arrest to the accused’s relatives or friends before their production before the Magistrate in New Delhi, or whether it was sufficient to do so before they were eventually produced before the jurisdictional court in Ernakulam.

Arguments Raised by the Accused

Accused Nos. 4 and 7 specifically contended that no intimation of arrest contemplated under Section 48 BNSS had been furnished to any of their relatives or friends before their production before the Magistrate in New Delhi.

Their counsel argued that failure to communicate the grounds of arrest to their relatives before the first production rendered their arrests illegal and entitled them to bail.

Reliance was placed, among other decisions, on the Supreme Court’s ruling in Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 SCC OnLine SC 1228].

The position of accused No. 6 involved an additional factual dispute. He had been arrested at 2.20 a.m. on June 12, 2026. According to him, he was produced before the Magistrate at 2.45 p.m., while the prosecution claimed that production took place at 6.45 p.m.

The records showed that the grounds of arrest were communicated to his father through WhatsApp at 3.01 p.m. As his father was abroad, communication was subsequently made to a friend of the accused on June 14.

It was argued that if the accused was produced at 2.45 p.m., the communication to his father occurred only after his production. Alternatively, even accepting the prosecution’s version that he was produced at 6.45 p.m., there was a delay of approximately 13 hours from the arrest in communicating the grounds to his father.

NCB’s Argument: Compliance Required Only Before Jurisdictional Magistrate

The NCB disputed the applicants’ contentions and maintained that the grounds of arrest had been furnished to their relatives before production before the Magistrate at New Delhi.

More importantly, the prosecution advanced a legal argument regarding the stage at which the constitutional obligation arises.

It contended that where an accused is arrested outside the jurisdiction in which the crime is registered and is initially produced before the nearest Magistrate merely for obtaining transit remand, immediate compliance with Article 22(1) and Sections 47 and 48 BNSS is not necessary.

According to the NCB, the mandate becomes applicable when the accused is ultimately produced before the jurisdictional Magistrate after being transported under the transit warrant.

The High Court rejected this interpretation.

Article 22 Protects Against Arbitrary Deprivation of Liberty

The Court examined the constitutional framework underlying the statutory safeguards of arrest. It noted that Article 21 guarantees life and personal liberty, while Article 22 operates as a constitutional safeguard against arbitrary deprivation of liberty.

Article 22 provides two particularly important protections to an arrested person. First, under Article 22(1), an arrested person has the right to be informed of the grounds of arrest and to consult and be defended by a legal practitioner of their choice. Second, Article 22(2) requires production of the arrested person before a Magistrate within 24 hours of arrest.

The High Court further observed that the right to communicate with a relative or next friend has been judicially recognised as an essential facet of Article 22(1).

Right of Relative or Friend to Be Informed

The Court referred to the landmark decision in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260], where the Supreme Court recognised an arrested person’s right, upon request, to have a friend, relative or other person informed about the arrest and place of detention.

The police officer is required to inform the arrested person of this right, and an entry must be made in the police diary recording the person who was informed. The Magistrate before whom the arrested person is produced also has a duty to verify whether these safeguards have been complied with.

The High Court also referred to D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], in which the Supreme Court formulated comprehensive safeguards relating to arrest and detention.

Among these safeguards is the right of the arrested or detained person to have a friend, relative or other person known to them informed, as soon as practicable, about the arrest and place of detention.

The principles developed through these decisions were subsequently given statutory recognition through Section 50A of the Code of Criminal Procedure, 1973.

Under the BNSS, these safeguards are now embodied in Sections 47 and 48. The High Court emphasised that Section 48 does not independently create the constitutional right. Rather, the statutory provision reinforces a protection that is already an integral part of Article 22(1).

Grounds of Arrest Must Reach Both Arrestee and Relative

The Court examined a line of recent Supreme Court decisions dealing with the communication of grounds of arrest, including:

• Pankaj Bansal v. Union of India [(2024) 7 SCC 576]
• Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254]
• Vihaan Kumar v. State of Haryana [(2025) 5 SCC 799]
• Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 SCC OnLine SC 1228]
• Mihir Rajesh Shah v. State of Maharashtra [(2026) 1 SCC 500]

The High Court observed that these decisions establish that the communication of the grounds of arrest must be meaningful and effective.

Particularly, the Court noted that in Vihaan Kumar, the Supreme Court held that the requirement is not confined to communication to the arrestee. The grounds must also be communicated to the friends, relatives or other persons nominated by the arrested person in accordance with the statutory requirement.

The principle was subsequently reiterated in Kasireddy, where the Supreme Court held that grounds of arrest must be furnished to family members or relatives so that necessary arrangements can be made to secure the arrested person’s release at the earliest opportunity.

Thus, the High Court concluded that furnishing the grounds of arrest to the detainee and communicating them to their relative or friend constitute integral components of the constitutional protection under Article 22(1).

Failure to satisfy this dual requirement can vitiate the arrest.

Does the Rule Apply Before Transit Remand?

The most significant part of the judgment concerns the relationship between transit remand and constitutional safeguards.

Section 45 BNSS permits the police to pursue an accused beyond their territorial jurisdiction. Where a person is arrested outside the jurisdiction in which the case is registered, the accused ordinarily has to be produced before the nearest Magistrate and transit remand obtained before the police can lawfully transport the person to the jurisdiction concerned.

The High Court referred to Priya Indoria v. State of Karnataka [(2024) 4 SCC 749], noting that immediately upon an arrest outside the jurisdiction where the crime is registered, the police are duty-bound to obtain transit remand for production before the competent Magistrate in conformity with Article 22.

The Court then examined Sections 58 and 187 BNSS and observed that the statutory requirement is production before the nearest Magistrate, rather than necessarily before the jurisdictional Magistrate.

Therefore, Sections 47 and 48, which operationalise protections under Article 22(1), must be interpreted consistently with Article 22(2).

First Magistrate Must Examine Legality of Arrest

The High Court rejected the proposition that the legality of the arrest could be examined only when the accused eventually reached the jurisdictional Magistrate.

The fundamental question when an arrested person is first produced before a Magistrate is the legality of the arrest itself.

Accordingly, the safeguards under Article 22(1) must already have been complied with when the arrested person is produced before a Magistrate for the first time. That Magistrate may or may not be the jurisdictional Magistrate.

The Court observed that shifting this examination to the jurisdictional Magistrate would undermine the constitutional safeguards attached to the first production following arrest.

Transit Remand Is Police Custody

The Court further relied upon Gautam Navlakha v. National Investigating Agency [(2022) 13 SCC 542], where the Supreme Court characterised transit remand as police custody for the purposes of Section 167 CrPC (Section 187 BNSS).

This became important to the Kerala High Court’s reasoning. If transit remand amounts to handing the arrested person over to police custody, the legality of the arrest must necessarily be established before the Magistrate authorises such custody.

The Court reasoned that the Magistrate cannot legitimately hand a person over to police custody without first ensuring that the arrest itself complies with constitutional safeguards.

Consequently, the requirement of compliance with Section 48 BNSS cannot be postponed until the accused reaches the jurisdictional Magistrate.

The Court held that where an arrested person is brought before a non-jurisdictional Magistrate even solely for transit remand, the grounds of arrest must be communicated both to the arrestee and to their relative or friend, as required by Article 22(1) and Sections 47 and 48 BNSS, before such production.

Failure to Communicate Grounds in the Present Case

Applying the principle to accused Nos. 4 and 7, the High Court found no material establishing that their relatives or friends had been informed of the grounds of arrest before their production before the Magistrate in New Delhi.

Notices issued under Section 48 purported to show service upon the brother of accused No. 7 and the cousin of accused No. 4 on June 12. However, the Court noted that both relatives were admittedly in Kerala during the relevant period.

The Court found that the endorsements recording service on June 12 were inconsistent with this circumstance.

Further, the remand reports did not refer to communication of the grounds of arrest to the relatives before the accused were produced before the Magistrate in New Delhi.

The Court therefore concluded that communication took place only after the first production. This amounted to complete non-compliance with Section 48 BNSS and vitiated the arrests of accused Nos. 4 and 7.

Burden Lies on Investigating Agency to Prove Compliance

Regarding accused No. 6, the High Court dealt with the dispute concerning the exact time of his production before the New Delhi Magistrate.

The prosecution asserted that he was produced at 6.45 p.m., while the accused maintained that production occurred at 2.45 p.m.

The Court noted that no material had been produced by the prosecution to substantiate the 6.45 p.m. claim. The case diary contained no corresponding entry, and even the remand report was silent regarding the exact time of production.

Relying upon Vihaan Kumar, the Court observed that once an arrested person alleges non-compliance with Article 22(1), the burden lies upon the investigating agency to demonstrate that the constitutional requirement was satisfied.

Since documents capable of establishing the precise time of production were not placed before the Court, the High Court accepted the accused’s assertion that he had been produced at 2.45 p.m.

As his father was informed through WhatsApp only at 3.01 p.m., the communication occurred after production before the Magistrate. His arrest was therefore vitiated as well.

13-Hour Delay Independently Violated Article 22(1)

The Court went further and held that even if the prosecution’s version that accused No. 6 was produced at 6.45 p.m. were accepted, the result would not materially change.

His arrest had taken place at 2.20 a.m., whereas the grounds of arrest were communicated to his father only at 3.01 p.m. This represented a delay of approximately 13 hours.

The High Court considered the Supreme Court’s decision in Mihir Rajesh Shah, which dealt with the timeframe for communicating grounds of arrest.

It noted that Article 22(1) uses the expression “as soon as may be”, while Section 47(1) BNSS employs the word “forthwith”.

The Supreme Court had recognised that exceptional circumstances may make immediate supply of written grounds impracticable. In such circumstances, oral communication may initially suffice, but the written grounds must subsequently be supplied within a reasonable time and, in any event, not later than two hours before production before the Magistrate for remand.

The Kerala High Court, however, held that the exception did not assist the prosecution in the present case.

The written grounds had admittedly been furnished to accused No. 6 himself at 2.20 a.m. Therefore, there was no practical difficulty preventing communication to his relative. Despite this, his father was informed only 13 hours later.

The High Court held that this delay itself constituted an infraction of Article 22(1).

Arrests Vitiated; Bail Granted

Concluding its analysis, the Kerala High Court held that there had been complete non-compliance with Article 22(1) of the Constitution read with Section 48 BNSS.

The grounds of arrest had not been communicated to the relatives or friends of accused Nos. 4, 6 and 7 in the manner required by the constitutional and statutory safeguards.

Their arrests consequently stood vitiated, entitling them to release on bail.

The Court directed each applicant to execute a bond of ₹1 lakh with two solvent sureties for the like amount to the satisfaction of the jurisdictional Magistrate/Court.

They were also directed to cooperate with the investigation, appear before the investigating officer between 10 a.m. and 11 a.m. every Saturday until further orders, refrain from committing similar offences, avoid contacting or influencing prosecution witnesses and not leave Kerala without the trial court’s permission.

Conclusion

The Kerala High Court’s order reinforces the proposition that constitutional safeguards relating to arrest operate from the very beginning of the deprivation of liberty.

The Court has made it clear that the distinction between a jurisdictional Magistrate and a Magistrate granting transit remand cannot be used to postpone compliance with Article 22(1). When an accused arrested outside the territorial jurisdiction of the case is first produced before the nearest Magistrate, the legality of the arrest must already be capable of judicial examination.

Accordingly, before such production, the grounds of arrest must be communicated not only to the accused but also to their relative or friend in accordance with Sections 47 and 48 BNSS. Transit remand is police custody, and constitutional compliance cannot be deferred merely because the first Magistrate is not the Magistrate who will ultimately deal with the investigation or trial.

By holding that failure to satisfy these safeguards vitiated the arrests and entitled the applicants to bail, the judgment places personal liberty and meaningful compliance with arrest safeguards at the centre of the transit-remand process.