Making it clear that communication of the written grounds of arrest is a mandatory constitutional safeguard, the Punjab and Haryana High Court has held that breach of the requirement renders the arrest constitutionally infirm and legally unsustainable.

The court made the observations while distilling the legal position emerging from a series of Supreme Court rulings into 10 governing principles, including the duty of Magistrates to verify compliance with constitutional and statutory safeguards before authorising further detention.

Justice Virinder Aggarwal held that the grounds of arrest must be furnished in writing in a language understood by the arrestee. These must also be supplied to the relative, friend or other person nominated by the accused.

“The grounds of arrest must be communicated to both the arrestee and the person so nominated expeditiously and, in any event, sufficiently prior to the production of the accused before the Magistrate for remand which should be at least two hours before production for remand, so as to enable the arrestee to effectively exercise the right to consult and be defended by a legal practitioner of choice,” Justice Aggarwal asserted while hearing a bail petition filed through counsel Vipul Jindal.

The Bench added that the Judicial Magistrate before whom the accused is first produced was under an independent and affirmative obligation to satisfy himself regarding due compliance with the mandatory constitutional safeguards envisaged under Article 22(1) of the Constitution of India, together with all other statutory requirements governing arrest, before authorizing further detention.

“Any infraction or non-compliance with these mandatory constitutional safeguards strikes at the very legality of the arrest and renders the arrest constitutionally infirm and legally unsustainable, entitling the accused to appropriate relief in accordance with law,” the Bench ruled.

The observations came while granting regular bail to a woman accused in a cross-border heroin smuggling case involving the alleged recovery of more than 10 kilograms of heroin. The prosecution’s case was that the heroin was allegedly drone dropped by a drone from Pakistan near a village in Gurdaspur district and was to be received by smugglers.

Among other things, petitioner’s counsel Jindal contended that the investigating agency at the time of her arrest failed to communicate the grounds of arrest either to the petitioner or her relatives, thereby violating the mandatory statutory safeguards governing arrest and rendering the arrest legally vulnerable.

Examining the arrest memo and the intimation memo, Justice Aggarwal observed it merely recorded the time of her arrest and stated that she was informed about the consequences of the offences before being arrested in accordance with the prescribed procedure. The arrest memo further recorded that she was apprised of her right to have the fact of her arrest communicated, following which she requested that her father-in-law be informed.

The Bench added both the arrest memo and intimation memo did not disclose that the specific grounds of arrest were communicated either to the petitioner or to her father-in-law in a language understood by them as mandated by Article 22(1) of the Constitution and Section 52(1) of the NDPS Act.

“Prima facie, therefore, the arrest of the petitioner appears to have been effected in derogation of the constitutional and statutory safeguards governing arrest,” the Bench observed.