Court pulls up Magistrate and Sessions Judge for ignoring binding directions on re-arrest procedures; orders explanation from both courts and directs circulation of earlier landmark ruling to all criminal courts in Kerala
The Kerala High Court on August 17, 2026, granted bail to Abdul Rauf M., an accused in a narcotics case, after holding that his re-arrest by the Excise Department within hours of being released for violation of his fundamental rights was patently illegal and in flagrant disregard of the Court's earlier binding directions.
Justice Dr. Kauser Edappagath, hearing the bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), came down heavily on both the Judicial First Class Magistrate Court-I, Kasaragod, and the Additional Sessions Court, Kasaragod Division, for mechanically remanding the accused and dismissing his bail plea despite clear violations of constitutional and statutory safeguards.
Background of the Case
Abdul Rauf was the first accused in Crime No. 17/2026 registered by the Kasaragod Excise Range Office. On July 8, 2026, at approximately 8:20 p.m., the Excise Inspector intercepted a Maruti Alto car near Santhosh Nagar in Chengala Village and allegedly recovered 1.899 grams of MDMA from the possession of the accused. He was arrested on the spot and charged under Sections 22(b), 25, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
When produced before the Magistrate on July 9, 2026, at noon, the court found that the grounds for arrest had not been communicated to the accused as mandated under Article 22(1) of the Constitution and Sections 47 and 48 of the BNSS. The Magistrate accordingly released him. However, at 4:30 p.m. on the very same day, the Excise authorities re-arrested Abdul Rauf, produced him before the same Magistrate, and secured a remand order sending him to judicial custody.
Sessions Court Rejects Bail on "Implied Permission" Theory
Abdul Rauf subsequently moved a bail application before the Sessions Court, arguing that his re-arrest was illegal as the investigating agency had not obtained prior permission from the Magistrate as mandated by the High Court's earlier judgment in Ramjith Nayak v. State of Kerala (2026 KHC OnLine 539). The Sessions Judge dismissed the application, reasoning that since the same Magistrate who released the accused also remanded him upon re-arrest, permission for re-arrest could be "implied."
High Court's Stern Rebuke
Justice Edappagath categorically rejected this reasoning, observing: "There is no question of implied permission." The Court reiterated that the landmark ruling in Ramjith Nayak — which itself drew from the Supreme Court's decision in Mihir Rajesh Shah v. State of Maharashtra (2025 SCC Online SC 2356) — laid down a clear and mandatory procedure. When an accused is released due to non-compliance with Article 22(1) and Sections 47 and 48 of the BNSS, the investigating agency must file a written application before the Magistrate or Court seeking permission to re-arrest. The Magistrate must then pass a reasoned order after giving the accused an opportunity of hearing.
"When an accused approached the Court of Law alleging that his fundamental right is violated, no Court is supposed to approach the issue in such a light manner," the Court observed sharply.
Bail Granted with Conditions
The Court allowed the bail application, directing release on a bond of Rs. 1,00,000 with two solvent sureties. Conditions included weekly appearance before the investigating officer, cooperation with the investigation, a prohibition on contacting prosecution witnesses or tampering with evidence, and a restriction on leaving Kerala without court permission.
Systemic Directions Issued
In an unprecedented step reflecting the gravity of the non-compliance, the Court directed the Registry to call for explanations from both the Judicial First Class Magistrate Court-I, Kasaragod, and the Additional Sessions Court, Kasaragod Division, for failing to follow the binding directions in Ramjith Nayak. Additionally, the Registry was ordered to forward a copy of the Ramjith Nayak judgment to all courts in Kerala dealing with criminal cases for strict compliance.
Legal experts have noted that this judgment reinforces the constitutional protection against arbitrary arrest and sends a strong message to lower courts and investigating agencies that procedural safeguards surrounding arrest cannot be circumvented through hasty re-arrests.
Statutory Provision(s): Article 22(1) of the Constitution of India, Section 47 of the Bharatiya Nagarik Suraksha Sanhita 2023, Section 48 of the Bharatiya Nagarik Suraksha Sanhita 2023, Section 483 of the Bharatiya Nagarik Suraksha Sanhita 2023, Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act 1985, Section 25 of the Narcotic Drugs and Psychotropic Substances Act 1985, Section 29 of the Narcotic Drugs and Psychotropic Substances Act 1985
Abdul Rauf M. v. State of Kerala, (Kerala) Law Finder Doc id # 2970374
