Can defects in the grounds of arrest be raised where the arrest was effected before the decision requiring them to be furnished?

The petitioner who was arrested and remanded to judicial custody on 09.10.2025 for the offences punishable under Sections 8(c), r/w 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for short) in C.C.No.1915 of 2025 on the file of the learned I Additional Special Judge, NDPS and EC Act, Chennai in connection with Crime No.159 of 2025 on the file of the respondent, seeks bail.

The case of the prosecution is that, on 09.10.2025, based on specific information, the respondent police proceeded to a place near Ambattur Railway Station at about 6.00 a.m. and apprehended two accused. During the search, 23 kgs of Ganja was allegedly recovered, of which 12 kgs was recovered from the petitioner/A1 and 11 kgs from A2. Hence, the case.

The learned counsel for the petitioner would contend that there are two accused in the present case and that the petitioner is arrayed as A1. According to him, only 12 kgs of Ganja was allegedly recovered from the petitioner, whereas 11 kgs was recovered from A2. Therefore, the recovery attributable to the petitioner is only an intermediate quantity. It is his further contention that the grounds of arrest are bereft of necessary particulars. He would also contend that the mandatory requirement under Section 50 of the NDPS Act has not been duly complied with, inasmuch as the notice issued under Section 50 of the NDPS Act was in the Tamil language, whereas the petitioner is a native of West Bengal and is not conversant with Tamil. It is his further submission that there are no materials available to invoke the theory of conspiracy. Hence, he prayed to enlarge the petitioner on bail.

The said contention was stoutly opposed by the learned Government Advocate (Crl.Side) and would contend that, at the time of interception, both the accused were found together and, during the search, a total quantity of 23 kgs of Ganja was recovered from them. He would further submit that the mandatory requirement under Section 50 of the NDPS Act has been duly complied with. It is also the contention of the learned Government Advocate (Crl.Side) that the arrest of the petitioner was effected prior to the judgment of the Hon'ble Supreme Court in Mihir Rajesh Shah v. State of Maharashtra, reported in (2026) 1 SCC 500. Therefore, even assuming that there were any lapses in the grounds of arrest, the petitioner cannot derive any benefit therefrom, since the Hon'ble Supreme Court in Mihir Rajesh Shah’s case (cited supra) has held that the law relating to the furnishing of grounds of arrest would operate prospectively. Hence, he prayed to dismiss the present bail petition.

I have given my anxious consideration to either side submissions.

As rightly contended by the learned Government Advocate (Crl.Side), the arrest of the petitioner was effected prior to the judgment of the Hon'ble Supreme Court in Mihir Rajesh Shah’s case (cited supra). Therefore, the defence raised by the petitioner with regard to the alleged defects in the grounds of arrest cannot be pressed into service in respect of an arrest effected prior to the said judgment. In this regard, it is appropriate to extract paragraph 68 of the judgment in Mihir Rajesh Shah’s case (cited supra), which reads as follows:- “68. We are cognizant that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences. Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an effective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrests henceforth.”

Coming to the mandatory requirement under Section 50 of the NDPS Act, the learned counsel for the petitioner relied upon the notice issued under Section 50 of the NDPS Act. As rightly contended by the learned counsel for the petitioner, the notice is in Tamil and there is no reference as to whether the petitioner was conversant with the Tamil language. In such circumstances, the contention is that the mere issuance of a notice under Section 50 of the NDPS Act in Tamil would not enable the petitioner to avail his right to be searched before a Gazetted Officer or the learned Magistrate.

Before delving into this aspect, it is necessary to examine the importance of compliance with Section 50 of the NDPS Act. In this connection, it is relevant to refer to the judgment of the Constitution Bench of the Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, reported in (2011) 1 SCC 609, wherein it has been categorically held that compliance with Section 50 of the NDPS Act is mandatory and that any deviation would vitiate the recovery of the contraband.

However, in the present case, apart from relying upon the notice issued under Section 50 of the NDPS Act, the learned Government Advocate (Crl.Side) invited the attention of this Court to the statement of the Investigating Officer, wherein it has been stated that the petitioner was informed of his right under Section 50 of the NDPS Act through one Aasik, who knew Hindi. Therefore, notwithstanding the fact that the written notice was in Tamil, the petitioner was informed of his right under Section 50 of the NDPS Act in Hindi through the said translator.

At this juncture, it is relevant to extract paragraph 24 of the judgment in Vijaysinh Chandubha Jadeja’s case (cited supra), which reads as follows:- "24. Although the Constitution Bench in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. " According to the above judgment, though the Hon'ble Supreme Court has made it clear that compliance with Section 50 of the NDPS Act is mandatory, it has also clarified that there is no prescribed format for issuing notice under Section 50 of the NDPS Act and that such notice need not necessarily be in writing.

Therefore, even oral communication informing the accused of his right under Section 50 of the NDPS Act would constitute sufficient compliance. In the case in hand, though the written notice was in Tamil and the petitioner may not have understood the same, the statement of the Searching Officer that the petitioner was informed of his right under Section 50 of the NDPS Act through one Aasik, in a language known to the petitioner, would, for the limited purpose of considering the present bail petition, amount to substantial compliance with Section 50 of the NDPS Act. Therefore, the contention that there has been non-compliance with Section 50 of the NDPS Act is liable to be rejected.

Coming to the contention regarding separate recovery and the absence of material to establish conspiracy, according to the prosecution, both the accused were intercepted at the same place and, during the search, 12 kgs of Ganja was recovered from the petitioner/A1, another 11 kgs from A2. No doubt, the recovery was effected under separate mahazars. At this juncture, the learned Government Advocate (Crl.Side) invited the attention of this Court to Section 35 of the NDPS Act and would submit that, once the respondent police have prima facie established that all the accused were found together at the time of recovery, the statutory presumption under Section 35 would stand attracted and it is for the petitioner to rebut the same.

It is also relevant to refer to the judgment of the Hon'ble Supreme Court in Gorakh Nath v. State of Bihar, reported in (2018) 2 SCC 305, wherein it has been held that the reverse burden under Section 35 of the NDPS Act does not confer any licence upon the prosecution to merely register a First Information Report and expect the accused to prove his innocence. The Hon'ble Supreme Court has categorically held that the prosecution must first establish a prima facie case before the statutory presumption can be invoked.

In the case in hand, according to the prosecution, both the accused were intercepted simultaneously and were found together at the time of search and seizure. This Court is of the firm view that their joint presence prima facie establishes a meeting of minds between them. Therefore, as rightly contended by the learned Government Advocate (Crl.Side), the quantity recovered from all the accused is liable to be aggregated with the quantity recovered from the present petitioner. If so aggregated, the total quantity would constitute a commercial quantity. Having already held that the contention regarding non-compliance with Section 50 of the NDPS Act does not enure to the benefit of the petitioner, this Court does not find any merit in the present bail petition.

Though the learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Amar Singh Ramjibhai Barot (cited supra), the said decision is clearly distinguishable on facts. In the present case, the joint presence of all the accused at the place of occurrence prima facie establishes a meeting of minds. Therefore, the said judgment is not applicable to the facts of the present case.

Accordingly, this Criminal Original Petition is dismissed. 16.07.2026 kv