Madurai Bench Dismisses Belated Challenge to NDPS Remand, Finds Grounds of Arrest Were Furnished in Writing

Justice R. Vijayakumar held that a handwritten arrest memo signed by four accused and attested by witnesses satisfied BNSS requirements; phone and SMS intimation to relatives was equally valid under Section 48 of the BNSS.

The Madurai Bench of the Madras High Court on 7 July 2026 dismissed a petition filed by four accused persons seeking to set aside a remand order passed under Crime No. 143 of 2024 by the Munsif Cum Judicial Magistrate, Kilvelur. Justice R. Vijayakumar, sitting singly, found that the arrest memo was handwritten, contained the grounds of arrest, was signed by all four accused, and was attested by two witnesses and the Taluk Police Inspector. The court also found that relatives had been informed of the arrest through phone calls and SMS, which satisfied Section 48 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The petition was additionally characterised as an afterthought, filed in January 2026 — more than eighteen months after the July 2024 remand — after regular bail attempts had failed.

The Dispute Before the High Court

Accused Nos. 1 to 4 — Dhetchinamoorthy @ Dakshinamoorthy, Sivamoorthy, Maniraj, and Gowtham — were arrested at 9:00 a.m. on 4 July 2024 by the Inspector of Police, Keelaiyur Police Station, Nagappattinam District. The FIR alleged they were transporting 200 kg of ganja in three vehicles for smuggling into Sri Lanka. They were produced before the Munsif Cum Judicial Magistrate, Kilvelur the same day and remanded to judicial custody. The offences were registered under Sections 8(c), 20(b)(ii)(c), 29(1) and 25 of the NDPS Act.

The criminal original petition, filed under Section 528 of the BNSS, reached the Madurai Bench only on 9 January 2026. Three grounds were pressed: the arrest memo was defective because it did not contain full particulars; arrest intimation was not given in writing to family members or relatives; and the arrest memo was a printed format that did not contain the actual grounds of arrest.

The Legal Issue

The case turned on two provisions of the BNSS. Section 36 (corresponding to Section 41-B of the Code of Criminal Procedure) requires every police officer making an arrest to prepare a memorandum of arrest attested by at least one witness, countersigned by the person arrested, and to inform the arrested person of the right to have a relative or friend informed if the memo is not attested by a family member. Section 48 (corresponding to Section 50-A of the CrPC) requires the arresting officer to forthwith give information regarding the arrest and the place of detention to relatives, friends, or persons nominated by the arrested person.

The petitioners argued that both provisions had been violated, relying on a string of Supreme Court decisions: Vihaan Kumar v. State of Haryana (2025 INSC 162), Prabir Purkayastha v. State (NCT of Delhi) (2024 INSC 414), Ashish Kakkar v. UT of Chandigarh (2025 SCC Online SC 1318), Pankaj Bansal v. Union of India (2023 INSC 866), and Mihir Rajesh Shah v. State of Maharashtra (2025 INSC 1288). Taken together, the petitioners contended that the grounds of arrest must be communicated in writing to the arrested person in a language they understand, and separately communicated in writing to family members; failure on either count would vitiate the remand.

The State countered that the arrest memo was handwritten, not a blank printed form, and that all four accused had signed it with an endorsement that they had been informed of the grounds. Relatives were informed by phone call and SMS on the date of arrest, with mobile numbers provided by the accused themselves. The State also relied on State of Karnataka v. Sri Dharshan (2025 SCC Online SC 1702) for the proposition that awareness of grounds in substance suffices even if not in writing, and on a Full Bench decision of the Madras High Court dated 28 March 2024 holding that non-intimation of relatives has limited bearing on detention decisions. Additionally, the State pointed to paragraph 58 of Mihir Rajesh Shah, which the Government Advocate read as confining the mandatory written-communication rule to arrests made after 6 November 2025 — after the date of that judgment. The arrest here was on 4 July 2024.

How the Bench Reasoned

Justice Vijayakumar examined the case diary files called for by the court and found the arrest memo to be handwritten. The memo recorded that all four accused were arrested at 9:00 a.m. on 4 July 2024 for carrying 200 kg of ganja in three vehicles for smuggling to Sri Lanka. All four had signed the memo, with an endorsement that they had been informed of the grounds of arrest. Two witnesses and the Taluk Police Inspector had attested it.

The court held that the Prabir Purkayastha standard — requiring not merely formal reasons but the actual grounds that necessitated the arrest, furnished in writing — had been met on the facts. The contention that the memo was a defective printed format was, on inspection of the records, factually incorrect.

On the question of family intimation, the court turned to the text of Section 48 of the BNSS. Reading the provision carefully, Justice Vijayakumar observed that it requires information to be given to relatives, friends, or nominated persons about the arrest and the place of detention, but does not prescribe that this communication must itself be in writing. In the present case, the accused had provided the names, addresses, and mobile numbers of their relatives. Phone calls and SMS messages were sent on the date of arrest based on those particulars. The impugned remand order itself recorded that intimation had already been given. No relative filed an affidavit denying receipt of information.

Against that factual backdrop, the court declined to read a written-intimation-to-relatives requirement into Section 48 that the text of the provision does not contain. The contention was held not legally sustainable.

The court also pointed to the timing of the petition. The remand was on 4 July 2024. The petition was filed on 9 January 2026 — well after a charge sheet had been filed and regular bail applications had been pursued. Justice Vijayakumar characterised the petition as an afterthought pursued only because other routes to release had not succeeded.

Outcome

The Criminal Original Petition in Crl.OP(MD).No.1636 of 2026 was dismissed on 7 July 2026. The Madurai Bench found no merit in any of the three grounds urged against the remand order dated 4 July 2024. Mr. K. Subburaj appeared for the petitioners and Mr. P. Samuel Gunasingh, Government Advocate (Criminal Side), appeared for the respondent State.