Grounds Of Arrest Need Not Be Communicated To Foreigner's Family If FRRO/Embassy Informed: Kerala High Court

The Kerala High Court recently held that when the accused is a foreign national, it is not necessary to communicate the grounds of his arrest to his relatives if the accused has been duly informed along with the Foreign Regional Registration Officer or his embassy or consulate.Dr. Justice Kauser Edappagath was considering a bail application preferred by a Tanzanian national residing in India and arrayed as accused no. 5 in a crime registered by the Kunnamkulam Police for the offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).The prosecution allegation was that the police found the accused nos. 1 and 2 in possession of MDMA and hashish oil. It was alleged that the petitioner supplied the contraband to accused nos. 3 and 4, who in turn sold it to accused 1 and 2.The petitioner argued that the requirement of communication of grounds of arrest was not complied with and that he was detained in police custody beyond 24 hours before being produced before the Magistrate.The Court reviewed the case diary and noted that the grounds of arrest were communicated to the petitioner as mandated under the Bharatiya Nagarik Suraksha Sanhita but not to his relative or friend. However, since the Foreign Regional Registration Officer (FRRO) was informed with explicit instructions to inform the Tanzanian Embassy/Consulate about the arrest, the Court felt that this amounts to sufficient compliance.It was opined:“In cases where the accused is a foreign national, compliance with Section 48 of the BNSS is fulfilled if the arrest and its grounds are communicated to the FRRO or the foreign national's Embassy/Consulate. Therefore, there has been adequate compliance with Sections 47 and 48 of the BNSS as well as Article 22(1) of the Constitution of India.”The Court next considered the question whether the petitioner was detained in custody beyond the 24-hour period. It took note of the fact that a Look Out Circular (LOC) was issued against the petitioner and by executing the LOC, the Bureau of Immigration had denied him at the Bangalore International Airport on April 15, 2025 at 1:00 am before he was transferred to the Airport Police Station. While so, the investigating officer filed an application seeking permission to arrest the petitioner and the same was allowed. Only then did the investigating officer take custody of the petitioner, at 12:39 am on April 16, 2025. He was then brought to the Kunnamkulam police station in Kerala and his arrest was recorded at 2 pm on April 16. He was thereafter produced before the Magistrate at 4 pm the same day.The Court remarked that the petitioner was produced before the Magistrate within 24 hours of his actual detention by the Kunnamkulam Police and therefore, there was no violation of Article 22(2) of the Constitution.The final question considered by the Court was whether the rigour of Section 37 of the NDPS Act was attracted in the present case. As per the provision, the twin conditions to be satisfied for granting bail are: (1) there are reasonable grounds to believe that the accused is not guilty of the offences alleged, and (2) he will not commit any offence while on bail.The Court noted that the petitioner was arrayed based on the confession statement of the 1st accused and that it is settled that a confession recorded under Section 67 of the NDPS Act is inadmissible in evidence. It was also noticed that as per the final report, the only material relied on by the prosecution to connect the petitioner with the crime is the single money transaction of Rs. 15000 between the 1st accused and the petitioner. Since there was no other material, the Court opined that the rigour under Section 37 NDPS Act cannot be attributed in the present case and the petitioner can be granted bail. That the final report has been filed and that he has been custody for more than 11 months also were considered by the Court while coming to the decision.Further, it was remarked that as per the Foreigners Act, the Central Government can issue an issue order for arresting and detaining a foreigner. It was also observed that as per the Foreigners Order, no foreigner can leave India without the leave of the Civil Authority concerned and that permission must be denied when a foreigner's presence is required in India to answer a criminal charge. The Court then observed that even if bail is granted, the afore powers can be exercised to arrest or detain a foreigner. Referring to the decisions in Frank Vitus v. Narcotics Control Bureau and Apple Barua v. State of Kerala, it was remarked that the Court must direct the State or the Investigating Agency to immediately inform the Registration Officer concerned about the grant of bail so that the Civil Authority concerned can be informed and it can take appropriate steps.Since the FRRO Kochi has already been impleaded in the bail application, the Court went on to grant bail to the petitioner on conditions. One of the conditions was that the FRRO shall pass...

Grounds Of Arrest Need Not Be Communicated To Foreigner's Family If FRRO/Embassy Informed: Kerala High Court

K. Salma Jennath

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