Non-compliance with Article 22(1) of Constitution in arrest procedure vitiates custody; statutory bail restrictions under NDPS Act overridden
In a significant judgment delivered on September 17, 2026, the Madras High Court, presided over by Mr. N. Ramesh, J., granted bail to Dhilipkumar, the petitioner accused in a narcotics case involving possession of commercial quantity of ganja. The case, registered as Crime No.164 of 2025 by the Prohibition Enforcement Wing (PEW), Ambattur Unit, Chennai, had seen the petitioner in judicial custody since October 19, 2025.
The petitioner faced charges under Sections 8(c), 20(b)(ii)(C), 29(1), and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), with the gravest offence punishable by rigorous imprisonment ranging from 10 to 20 years. Despite the stringent statutory restrictions under Section 37 of the NDPS Act that typically bar bail in such cases, the Court found that the arrest and subsequent remand of the petitioner were vitiated due to non-compliance with Article 22(1) of the Constitution of India.
The crux of the judgment hinged on the failure of the police to effectively communicate the grounds of arrest to the petitioner at the time of arrest, as mandated by Article 22(1) and Section 47 of the Bharatiya Nyaya Sanhita, 2023 (BNSS). The arrest memo served to the petitioner did not disclose critical details such as the quantity of contraband seized or the specific penal provisions invoked. The Court emphasized that such omission is not merely a procedural lapse but a violation that prejudices the accused's right to a fair defense, including consultation with legal counsel.
The Court drew heavily on the precedent set by the Supreme Court in Vihaan Kumar v. State of Haryana (2025) 5 SCC 799, which held that non-compliance with Article 22(1) renders the arrest and remand orders invalid and that courts retain the power to grant bail notwithstanding statutory prohibitions in cases of constitutional violations. This principle was reinforced by a prior bail granted to the co-accused, who was similarly served with an incomplete arrest notice.
The petitioner's counsel argued that since the grounds of arrest were neither furnished in writing nor explained, the arrest was unconstitutional, a position upheld by the Court. The respondent State's contention that the grounds were communicated orally was unsubstantiated and insufficient to discharge the burden of proof on the prosecution.
Despite the petitioner having pending criminal cases unrelated to the NDPS Act, the Court held that the fundamental constitutional rights take precedence. Consequently, Dhilipkumar was ordered released on bail subject to stringent conditions including furnishing a bond of Rs. 25,000 with two sureties, daily police reporting, prohibition against absconding or tampering with evidence, and adherence to directions of the trial court.
This judgment underscores the judiciary's commitment to safeguarding constitutional protections for accused persons, ensuring procedural fairness even in serious offences under the NDPS Act. It clarifies that statutory restrictions on bail cannot override the fundamental rights guaranteed under Articles 21 and 22 of the Constitution.
Bottom Line:
Non-compliance with Article 22(1) of the Constitution of India, such as failure to communicate the grounds of arrest effectively, vitiates the arrest and subsequent orders of remand, warranting the release of the accused on bail even if statutory restrictions exist under Section 37 of the NDPS Act.
Statutory provision(s):
Sections 8(c), 20(b)(ii)(C), 25, 29(1), 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 36, 47, 52(1), 483 of Bharatiya Nyaya Sanhita, 2023; Articles 21, 22(1) of the Constitution of India, 1950
Dhilipkumar v. State, (Madras) : Law Finder Doc Id # 2981440
