The Supreme Court today reserved judgment on the issue whether an accused in an NDPS case can be granted bail on account of failure to supply grounds of arrest as per Article 22(1) of the Constitution, without satisfying the stringent twin conditions for bail prescribed under Section 37 of the Act.

A bench of Justice BV Nagarathna and Justice R Mahadevan reserved judgment in appeal filed by State of Tamil Nadu against a Madras High Court order granting bail to a man arrested for alleged possession of 50 kg of Ganja.

The state's plea has raised the issue – “Whether the High Court could have granted bail by primarily relying upon an alleged infirmity regarding communication of grounds of arrest without first recording findings on the statutory conditions prescribed under Section 37 of the NDPS Act?”

Notably, the Supreme Court in Jaskaran Deol v. State of Punjab recently emphasised that when an accused is released for violation of his fundamental rights under Article 22(1), he is not enlarged on bail but is released from illegal and unconstitutional detention. It also stressed that Article 22(1) applies across the spectrum including offences under the IPC and under special NDPS.

In the present case, the accused, one Vignesh was arrested on October 19, 2025. The prosecution alleges recovery of 50 kg of ganja, with 25 kg allegedly recovered from Vignesh and another 25 kg from co-accused. He was arrested for alleged offences under Sections 8(c), 20(b)(ii)(C), 29(1) and 25 of the NDPS Act.

The arrest memo issued to Vignesh under Section 52(1) of the NDPS Act stated, “you have been arrested near the Ambattur-Soorapattu Toll Plaza for the offence of being in possession of ganja, a narcotic substance prohibited by the Government.”

The Special NDPS Court rejected his bail plea, holding that the offence involved commercial quantity and he had failed to satisfy the twin conditions under Section 37. He then approached the Madras High Court.

Before the High Court further, Vignesh contended that the failure to properly communicate the grounds of arrest prevented him from approaching the Court for bail and effectively arguing his case on merits.

The High Court held that the arrest memo communication did not adequately set out the basic facts constituting the grounds of arrest. It noted that the prior information received by the police, the search conducted pursuant to that information, the seizure of the contraband and other relevant facts had not been furnished to Vignesh.

The High Court's relied on Supreme Court judgments on Article 22(1), including Vihaan Kumar v. State of Haryana and Mihir Rajesh Shah v. State of Maharashtra. It reiterated that the grounds of arrest must be meaningfully communicated to the accused and non-compliance can render the arrest and subsequent remand illegal.

The State argued that the accused must establish demonstrable prejudice or denial of a fair opportunity to defend. The High Court found that Vignesh had demonstrated such prejudice. It pointed out that the arrest communication need not disclose the prior information received by the police, the search conducted after informing him, or the seizure of the contraband under the seizure mahazar.

The High Court held that these were basic facts constituting the grounds of arrest and their non-communication prevented Vignesh from effectively seeking bail and presenting his case on merits, thereby violating Article 22(1).

The High Court opined that the accused demonstrated prejudice through denial of a fair opportunity to defend himself. It consequently held that there had been no proper compliance with the requirement of informing him of the grounds of arrest under Article 22(1), rendering his custody illegal.

Thus, the High Court granted bail on a bond of Rs.25,000 with two sureties and directed Vignesh to report before the police daily.

Before the Supreme Court, the State has challenged the High Court's reliance on “alleged” inadequacy in communication of the grounds of arrest. The State has contended that stringent conditions for bail under Section 37 of the NDPS Act were not satisfied in the present case.

The State's SLP contends that the High Court failed to consider the commercial quantity of contraband and did not record satisfaction that there were reasonable grounds for believing that Vignesh was not guilty.

“By the impugned order dated 27.02.2026, the High Court enlarged the respondent on bail primarily or the ground that the arrest memo and communication of grounds of arrest allegedly did not furnish adequate particulars and that prejudice had been caused to the accused. The High Court, while granting bail, failed to consider that the case involved recovery of commercial quantity of narcotic substance and consequently attracted the statutory embargo contained in Section 37 of the NDPS Act. The High Court did not record any finding that there existed reasonable grounds for believing that the respondent was not guilty of the offences alleged against him. Equally, no finding was recorded that the respondent was not likely to commit any offence while on bail. The mandatory twin conditions stipulated under Section 37(l)(b)(ii) of the NDPS Act were thus completely ignored”, the state contended.

The State has contended that the High Court bypassed the statutory embargo under Section 37. Once the offence involves commercial quantity, the grant of bail is subject to the additional statutory requirements, the state contended.

“Because even assuming without admitting' that any procedural irregularity existed, such circumstance could not have automatically entitled the respondent to bail in the absence of a finding satisfying the twin statutory conditions under Section 37”, the state argued.

The Supreme Court today reserved order in the case.

Appearances : B Karunakaran for the State; Sriram Parakkat for the Respondent.

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