Kerala HC Grants Bail in NDPS Case After Finding Section 48 BNSS Violated: Arrest Notice Sent to Co-Accused's Father, Not Accused's Relative

Kerala High Court grants bail to an NDPS accused after finding that informing the co-accused's father — not the applicant's own relative — cannot satisfy Section 48 of the BNSS, rendering the arrest illegal.

The High Court of Kerala at Ernakulam has granted regular bail to an accused in an NDPS case by holding that the excise authorities failed to comply with Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Dr. Justice Kauser Edappagath, sitting singly, found that communicating the grounds of arrest to the father of the co-accused — a person who has no legal or factual connection to the applicant — does not discharge the obligation to inform the applicant's own relatives. The applicant, Muhashib, had been in custody since 11 June 2026 on charges under the Narcotic Drugs and Psychotropic Substances Act, 1985. The order was delivered on 22 July 2026.

The NDPS Prosecution and Custody

Muhashib, 29 years old and a resident of Kollam district, is the accused No. 1 in Crime No. 54/2026 registered by the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. The prosecution alleged that on 11 June 2026 at about 2:10 p.m., he and the accused No. 2 were found in possession of 6.031 grams of MDMA in front of the parking area of Hazel Gardens Lodge near metro station pillar No. C/D/3 at Ernakulam South.

The offences alleged are punishable under Sections 22(b) and 29 of the NDPS Act. Muhashib has been in custody since the date of arrest, 11 June 2026. He moved Bail Application No. 3744 of 2026 under Section 483 of the BNSS seeking regular bail.

Sri. P. Mohamed Sabah appeared for the applicant, assisted by several other advocates. Sri. Thomas Sabu Vadakekut, Public Prosecutor, appeared for the State and the Excise Circle Inspector.

The Legal Issue: Who Must Receive the Grounds of Arrest?

The applicant's counsel raised a specific and focused ground: that the grounds of arrest were not communicated in accordance with law at the time of his arrest. The Public Prosecutor opposed bail and contended that the grounds were duly communicated.

The court acknowledged that there were prima facie materials on record connecting the applicant with the crime. Despite this, Dr. Justice Kauser Edappagath chose to examine the communication-of-arrest question first, given its constitutional weight.

Section 47 of the BNSS requires that the grounds of arrest be communicated to the person arrested. Section 48 separately requires that information about the arrest be communicated to a nominated person — a relative or friend of the arrested person. Article 22(1) of the Constitution underpins both provisions by guaranteeing every arrested person the right to be informed of the grounds of arrest.

The court surveyed the governing precedents. It noted that the requirement is “a mandatory requirement of Art.22(1) of the Constitution and Section 47 of BNSS” and that non-compliance renders the arrest illegal. The court drew on Pankaj Bansal v. Union of India and Others [(2024) 7 SCC 576], Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], Vihaan Kumar v. State of Haryana and Others [2025 SCC OnLine SC 269], and Mihir Rajesh Shah v. State of Maharashtra and Another [2025 SCC OnLine SC 2356].

The court also relied on the Supreme Court's ruling in Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 SCC OnLine SC 1228], which held that the grounds of arrest must be provided not only to the arrestee but also to family members and relatives so that necessary arrangements can be made to secure the person's release at the earliest, thereby making the mandate of Article 22(1) meaningful and effective. Failure to do so renders the arrest illegal.

A single judge of the Kerala High Court in Alvin Riby v. State of Kerala [2025 KER 67079], following Kasireddy Upender Reddy, had already held that failure to communicate the grounds of arrest to the near relatives renders the arrest illegal. Dr. Justice Kauser Edappagath applied the same position in this case.

The Live-In Relationship and the Wrong Relative

The facts on the communication of arrest were not in dispute in material respects. The grounds of arrest were admittedly communicated to the applicant himself, satisfying Section 47 of the BNSS. The controversy arose under Section 48.

The excise authorities had communicated the grounds of arrest of both accused — Muhashib and accused No. 2 — to the father of accused No. 2. The applicant's specific case was that he has no connection whatsoever with the father of the accused No. 2 and that he and the accused No. 2 are living together without the knowledge of accused No. 2's father.

The court noted a critical legal point arising from the nature of the relationship: the applicant and accused No. 2 are admittedly live-in partners and are not legally married. Because there is no legal marriage, the father of accused No. 2 cannot, in law, be characterised as a relative of the applicant.

The court then examined the remand report, the mahazar, and the case diary. It found “nothing in the mahazar, remand report or case diary” to show that the intimation regarding the arrest of the applicant was communicated to the father of accused No. 2 as instructed by the applicant. This factual gap was decisive. There was no material to establish that the applicant had nominated or directed the authorities to inform accused No. 2's father on his behalf.

Court's Reasoning on Non-Compliance

Dr. Justice Kauser Edappagath held that there was non-compliance of Section 48 of the BNSS. The reasoning rested on two pillars. First, the person informed — the father of accused No. 2 — is not a relative of the applicant because the two are not legally married. Second, there is no record to show that the applicant instructed or nominated the father of accused No. 2 to be the person to be informed. Absent such nomination or a legal relationship, informing that person does not discharge the statutory obligation under Section 48.

The court treated this non-compliance as entitling the applicant to bail, consistent with the position laid down by the Supreme Court and the earlier Kerala High Court ruling in Alvin Riby. The existence of prima facie material connecting the applicant to the crime did not outweigh the constitutional and statutory violation in the manner of the arrest.

Outcome

Bail Application No. 3744 of 2026 was allowed. The court directed that Muhashib be released on bail subject to the following conditions:

• He shall execute a bond for Rs. 1,00,000 (Rupees One Lakh) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate or Court.
• He shall fully co-operate with the investigation.
• He shall appear before the investigating officer between 10:00 a.m. and 11:00 a.m. every Saturday until further orders and as and when required.
• He shall not commit any offence of a like nature while on bail.
• He shall not attempt to contact any prosecution witnesses, directly or through any other person, or tamper with evidence or influence witnesses or other persons related to the investigation.
• He shall not leave the State of Kerala without the permission of the trial Court.
• Any application for deletion or modification of bail conditions or for cancellation of bail on grounds of violation shall be filed before the jurisdictional court.