Kerala HC: Article 22 Safeguards Apply at Transit Remand Stage, Not Just Before Jurisdictional Magistrate
The Kerala High Court held that grounds of arrest must be communicated to relatives before production even before a non-jurisdictional Magistrate, vitiated three NCB arrests under Article 22(1) and granted bail in a major drug trafficking case.
The High Court of Kerala at Ernakulam, on 21 August 2026, granted bail to three accused persons charged with serious offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), after finding that the Narcotics Control Bureau (NCB) had failed to communicate the grounds of arrest to their relatives before producing them before the Judicial First Class Magistrate at Patiala House Court, New Delhi, for transit remand. Dr. Justice Kauser Edappagath, sitting singly, resolved a pointed constitutional question: whether the obligations under Article 22(1) of the Constitution and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are triggered at the moment of first production before any Magistrate—including a non-jurisdictional Magistrate granting transit remand—or only when the accused is eventually brought before the jurisdictional Magistrate. The court answered firmly in favour of the former.
The NCB Case and Arrests in Greater Noida
The case arises from OR No. 9/2026 of the NCB, Cochin Zonal Unit. On 10 June 2026 at 7.45 p.m., NCB officers seized 604 grams of Charas from the residence of Accused No. 1 in Ernakulam, where Accused Nos. 2 and 3 were also present. During interrogation, Accused No. 1 disclosed that the contraband had been sourced from a Keralite drug trafficking gang based in Greater Noida, Uttar Pradesh, and that further contraband was concealed in the rented premises of Accused Nos. 4 and 5 there.
Officers of the NCB Cochin Zonal Unit, together with officials of the NCB Delhi Zonal Unit, proceeded to Shree Radha Sky Gardens Apartment Complex, Greater Noida (West). On 11 June 2026 at 9.00 p.m., a search in the presence of independent witnesses yielded 36.735 kg of Hydroponic Cannabis and 3.942 kg of Charas. The three bail applicants—Mikhin Mathew Gracious (Accused No. 4), Muhammed Ashfaq C (Accused No. 6), and Shahul Hameed K.T. (Accused No. 7)—were among those present at the flat. The offences alleged are punishable under Sections 8(c), 20(b)(ii)(C), 23, 25, 27A, 28 and 29 of the NDPS Act.
All three applicants were apprehended in the early hours of 12 June 2026 and produced before the Judicial First Class Magistrate at Patiala House Court, New Delhi, on the same day, where a transit warrant was obtained. They were brought to Kochi on 14 June 2026 and produced before the Sessions Court, Ernakulam, at 8.45 p.m. They have been in judicial custody since 14 June 2026.
The Constitutional Question: When Does Article 22 Bite?
The NCB's position was that compliance with Article 22(1) and Sections 47 and 48 of the BNSS is not required at the transit remand stage. According to the prosecution, when an accused is arrested outside the jurisdiction in which the crime is registered and produced before the nearest Magistrate only for a transit warrant, the constitutional obligations are activated only when the accused is subsequently produced before the jurisdictional Magistrate. The NCB contended that the grounds of arrest were, in any event, communicated to the relatives or friends of all three accused prior to their production before the Sessions Court, Ernakulam.
The applicants' counsel argued the opposite: that the failure to communicate grounds of arrest to relatives before production before the New Delhi Magistrate itself vitiated the arrests, entitling the accused to bail. They relied on Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 SCC OnLine SC 1228], Vihaan Kumar v. State of Haryana [(2025) 5 SCC 799], Pankaj Bansal v. Union of India [(2024) 7 SCC 576], Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], Mihir Rajesh Shah v. State of Maharashtra [(2026) 1 SCC 500], Joginder Kumar v. State of U.P. [(1994) 4 SCC 260], and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416].
How the Court Reasoned on Transit Remand and Article 22
Justice Edappagath traced the constitutional framework from Articles 21 and 22. Article 22(1) guarantees the right to be informed of the grounds of arrest and to consult legal counsel. Article 22(2) requires production before a Magistrate within twenty-four hours. The right to have a relative or friend informed of the arrest has been recognised by the Supreme Court as an essential facet of Article 22(1), most prominently in Joginder Kumar and D.K. Basu. That right found statutory expression first in Section 50A of the Code of Criminal Procedure and now in Section 48 of the BNSS.
The court addressed the specific mechanics of transit remand under Section 45 of the BNSS (corresponding to Section 48 of the CrPC). When an accused is arrested outside the registering jurisdiction, the police must secure a transit remand to lawfully convey the accused to the place of trial. The Supreme Court, in Priya Indoria v. State of Karnataka [(2024) 4 SCC 749], had held that obtaining a transit warrant is mandatory in conformity with Article 22.
Justice Edappagath then turned to the core structural argument. Section 58 read with Section 187 of the BNSS requires production before the nearest Magistrate, not the jurisdictional Magistrate. Sections 47 and 48, which operationalise Article 22(1), must be construed consistently with Article 22(2). If Article 22(2) mandates production before the nearest Magistrate, Article 22(1) cannot be deferred to a later production before a different, jurisdictional Magistrate. The court held: “the checks and balances as provided for in Article 22(1) will have to be met when the arrested person is produced before the Magistrate for the first time, i.e. the nearest Magistrate.”
The judgment drew on the Supreme Court's characterisation of transit remand in Gautam Navlakha v. National Investigating Agency [(2022) 13 SCC 542], where transit remand was held to amount to police custody under Section 167 CrPC. Justice Edappagath reasoned that custody cannot be legitimised without first establishing the legality of the arrest, and that legality must be examined at the very first production. Deferring the Article 22(1) inquiry to the jurisdictional Magistrate would mean two different Magistrates examining Article 22(2) at two different points in time, which distorts the constitutional architecture.
The court also drew from Vihaan Kumar, where the Supreme Court had held that when an arrested person is produced before a judicial Magistrate for remand, it is the Magistrate's duty to ascertain whether Article 22(1) safeguards have been met, and that a violation requires the court to forthwith order release. The judgment in Vihaan Kumar, Justice Edappagath observed, does not limit this duty to a jurisdictional Magistrate—it speaks of any judicial Magistrate before whom the arrested person is brought.
The conclusion was stated plainly: “when a person who is arrested is brought before a non-jurisdictional Magistrate even if only for the purpose of ordering a transit or transit remand, it is imperative that the grounds of arrest be communicated both to the arrestee and to his relative or friend, as mandated under Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS, prior to such production.”
Application to Each Accused
Accused Nos. 4 and 7 (Mikhin Mathew Gracious and Shahul Hameed K.T.): The NCB produced notices under Section 48 of the BNSS purporting to show service on the brother of Accused No. 7 and the cousin of Accused No. 4, both dated 12 June 2026. However, both relatives were admittedly in Kerala on that date, making service in Delhi on that date impossible. The definite case of both accused was that their relatives were summoned to the NCB office at Kakkanad on 14 June 2026, where signatures were obtained on the arrest intimations. The remand reports of both accused contained no reference to any prior communication. The court found total non-compliance with Section 48 of the BNSS, vitiated the arrests, and held the accused entitled to bail.
Accused No. 6 (Muhammed Ashfaq C): The facts here were more contested. Accused No. 6 was arrested at 2.20 a.m. on 12 June 2026. The prosecution conceded that the grounds of arrest were furnished to him in writing at that time. There was, however, a dispute about the time of production before the New Delhi Magistrate: the accused said 2.45 p.m., the NCB said 6.45 p.m. The father of Accused No. 6 was informed via WhatsApp at 3.01 p.m. on 12 June 2026—after the accused's claimed production time but before the prosecution's claimed time. The prosecution placed no documentary material on record to prove the 6.45 p.m. production, and the remand report was silent on the time. Relying on Vihaan Kumar, which places the burden of establishing compliance on the investigating agency, the court accepted the accused's version of production at 2.45 p.m. On that basis, the grounds of arrest had not been communicated to the father before production, vitiating the arrest.
The Two-Hour Rule in Mihir Rajesh Shah Distinguished
The NCB sought to rely on the Supreme Court's decision in Mihir Rajesh Shah [(2026) 1 SCC 500], which carved out an exception permitting delay in furnishing written grounds of arrest in certain practical circumstances, subject to a two-hour outer limit before production before the Magistrate. Justice Edappagath examined paragraphs 49, 50, and 52 of that judgment in detail.
The court held that Mihir Rajesh Shah addressed the timeframe for communicating grounds of arrest to the arrestee in exceptional operational circumstances, such as offences committed in flagrante delicto. That exception has no application here because the grounds of arrest were admittedly furnished in writing to Accused No. 6 at 2.20 a.m.—the moment of arrest. There were no exceptional circumstances preventing communication. Despite having furnished the grounds to the accused himself at arrest, the NCB waited thirteen hours before informing the father. Since Sections 47 and 48 of the BNSS form an integral part of Article 22(1), and the constitutional standard of “as soon as may be” remains unchanged, a thirteen-hour delay in intimating the father was itself an independent infraction of Article 22(1), regardless of whether production occurred at 2.45 p.m. or 6.45 p.m.
Order
All three bail applications were allowed. B.A. No. 3965/2026 (Accused No. 6), B.A. No. 4218/2026 (Accused No. 4), and B.A. No. 4547/2026 (Accused No. 7) were decided together on 21 August 2026. The court directed that each applicant be released on bail upon executing a personal bond for Rs. 1,00,000 with two solvent sureties for the like sum, to the satisfaction of the jurisdictional Magistrate or court.
The conditions imposed are: full co-operation with the investigation; appearance before the investigating officer between 10.00 a.m. and 11.00 a.m. every Saturday until further orders, and as and when otherwise required; no commission of any like offence while on bail; no contact with prosecution witnesses, directly or indirectly, and no tampering with evidence or influencing any person connected with the investigation; no leaving the State of Kerala without the permission of the trial court. Any application for modification or cancellation of bail conditions is to be filed before the jurisdictional court.