Dr. Justice Kauser Edappagath observed:

“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 aresstee and to his relative or friend, as mandated under Article 22(1) of the Constituiton and Sections 47 and 48 of the BNSS, prior to such production.”

The Court noted that while the police can arrest any person outside of jurisdictional limits, the arrestee must be produced before the nearest magistrate for obtaining transit remand. It then observed that the constitutional safeguard under Article 22(1), regarding communication of arrest grounds, has to be satisfied at the time of production before nearest magistrate within 24 hours as mandated under Article 22(2).

The Court referred to Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which respectively mandate communication of arrest grounds to arrestee and to his relative/friend/nominated person. It reasoned:

“Sections 47 and 48 of BNSS, which deal with Article 22(1) have to be construed consistent with the mandate of Article 22(2). For Article 22(1), it cannot be a jurisdictional Magistrate, whereas for the purpose of Article 22(2), it has to be the nearest Magistrate. This is so because the fundamental aspect that has to be ascertained on production in the event of an arrest and detention is the very 'legality' of the arrest and not the question whether the accused is liable to be granted bail or not. The contextual milieu arising from a construct of the above provisions is that 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 (who may or may not be a jurisdictional Magistrate) upon arrest and detention.”

The Court further opined:

“A transit remand is nevertheless a remand and is handing over to police custody… Without legitimising the arrest of the person, one cannot be handed over to police custody. Essentially therefore, the Magistrate to whom the person is produced after the arrest-the mandatory requirement of ascertaining whether the very arrest is illegal cannot be shifted to the jurisdictional Magistrate. Any such construct would render the very appreciation of Article 22(2) at two different points of time by two different Magistrates. If the import of "transit remand” is “police custody”, not to read into Section 48 of BNSS would be a dilution of Article 22 itself.”

The Court was considering a batch of bail applications preferred by persons accused of offences under the NDPS Act [Narcotic Drugs and Psychotropic Substances Act, 1985]. The petitioners were arrested from Delhi based on the information given by the other accused, who were arrested from Kerala, and they were produced before the Magistrate, Patial House Court (Delhi) to obtain transit warrant. They were brought to Kerala and produced before the Sessions Court.

The petitioners sought bail alleging that arrest grounds were not duly communicated to their relatives as per Section 48 BNSS and Article 22(1) of the Constitution prior to production before magistrate in Delhi. The prosecution contended that arrestees and relatives were informed of arrest grounds before production before magistrate. It was also argued that when arrest is outside jurisdiction, compliance with the provisions is not immediately required.

After hearing the parties, the Court looked at the constitutional framework enshrined in Article 21 and 22 as well as the precedents laid down by the Apex Court, including Joginder Kumar v. State of U.P. [(1994) 4 SCC 260], D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], Priya Indoria v. State of Karnataka, Kasireddy Upender Reddy v. State of Andhra Pradesh, Pankaj Bansal v. Union of India, Vishal Manohar Mandrekar v. State of Telangana, Gautam Navlakha v. National Investigating Agency, Prabir Purkayastha v. State (NCT of Delhi), Vihaan Kumar v. State of Haryana and Mihir Rajesh Shah v. State of Maharashtra. It also referred to the statutory provisions under the BNSS and the erstwhile CrPC.

Looking into the merits of the cases, the Court noted that with respect to two of the petitioners, their relatives were intimated only after they were produced before the Magistrate in Delhi. Therefore, the Court was of the view that their arrests were vitiated and therefore, they were entitled to be enlarged on bail.

In one of the cases, there was a dispute regarding the exact time of production before the magistrate and it was asserted by the petitioner that there was a delay of 13 hours in communicating arrest grounds to his father. Since the prosecution did not produce any materials to support its assertion regarding timing, the Court was of the view that the earlier timing as asserted by the petitioner has to be accepted, leading to a conclusion that arrest grounds were not communicated as contemplated by law.

The Court, thus, allowed all the bail applications and enlarged all the three petitioners on conditions.

Case No: B.A. Nos. 3965, 4218 & 4547 of 2026

Case Title: Muhammed Ashfaq C. v. Union of India and connected cases

Citation: 2026 LiveLaw (Ker) 465

Counsel for the petitioners: N. Krishna Prasad, Imam Grigorios Karat, A. Mohammed Faizal, P. Shanes Methar, Harkish Sreethu V.S., Arjun P.V., P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Alwin Joseph, T.I. Safdarshah, Benson Ambrose, Rameesa P. A.

Counsel for the respondents: R. Vinu Raj - Spl. Public Prosecutor - Narcotics Control Bureau, Anjaly Sagar A. A., Sangeeth Krishna G.S., V. Vinay - Sr. Public Prosecutor, Ashok Poulo Paul, Aneeda Beegum - Sr. Public Prosecutor

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