Babulal Jain vs The Inspector- Narcotics Control Bureau

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS), seeking regular bail.

The applicant is the accused No.12 in Crime No.9/2025 of Narcotics Control Bureau, Cochin Zonal Unit, Ernakulam District. The offences alleged are punishable under Sections 8(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act). 3. Initially the crime was registered by the Narcotics Control Bureau, Cochin Zonal Unit (for short, NCB) against the accused Nos. 1 and 2, from whom 1.509 kilograms of Methamphetamine was seized on 04.12.2025. Later on, during the investigation, the remaining accused were also arrayed as the accused alleging criminal conspiracy and funding to procure the contraband seized from the accused Nos.1 and 2. The applicant herein was furnished with a notice under Section 67 of the NDPS Act and was directed to be present before the officials of NCB on 17.09.2026. He was interrogated on that day and on the next day, i.e. 18.09.2026. Thereafter, on 24.09.2026, the applicant was again served with Annexure 6 notice under Section 67 of the NDPS Act to appear for interrogation on 30.09.2026. Apprehending arrest, the applicant filed a pre-arrest bail application before this Court as B.A. No.5676/2026. It was posted for admission on 29.09.2026. In the meanwhile, on the evening of 28.09.2026, the applicant was arrested, produced before the Magistrate and was remanded to judicial custody. It was thereafter the present application for regular bail was filed.

I have heard Sri.Arjun S., the learned counsel for the applicant and Sri.Vinu Raj R., the learned Special Public Prosecutor for NCB. Perused the case diary.

The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that there are no materials on record to connect the applicant with the crime. The counsel emphasizes that the arrest is per se illegal inasmuch as it was effected prior to his appearance before the NCB pursuant to Annexure 6 notice under Section 67 of the NDPS Act. He has also submitted that the grounds for arrest were not communicated to the applicant in terms of Sections 47 and 48 of the BNSS read with Art.22(1) of the Constitution of India and hence his arrest is vitiated. On the other hand, the learned Special Public Prosecutor for NCB submitted that the applicant was arrested after collecting all the materials to show his involvement in the crime. The learned Special Public Prosecutor further submitted that there are materials to show that the applicant has financed to procure the contraband which were seized from the possession of the accused Nos.1 and 2. It is also submitted that the arrest is perfectly legal and there is due compliance with Sections 47 and 48 of the BNSS read with Art.22(1) of the Constitution.

Section 35(1)(c) of the BNSS reads as follows:

Thus, the arrest of a person who has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years, whether with or without a fine or with death sentence, could be effected only if there was “credible information” and the police officer had “reason to believe” that the offence had been committed and that such arrest was necessary. The word “reason to believe“ has not been defined in the BNSS. Section 2(29) of the Bharatiya Nyaya Sanhita, 2023 (for short, BNS) (Section 26 of the Indian Penal Code, 1860) explains the word “reason to believe” as - a person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise. Section 2(2) of the BNSS says that the words and expressions used in the BNSS and not defined but defined in the BNS have the meanings respectively assigned to them in the BNSS. Thus, the expression “reason to believe” in Section 35 of the BNSS has to be read in the light of Section 2(29) of the BNS.

The Supreme Court has consistently held that the exercise of the power of arrest requires reasonable belief about a person's, complicity, and also about the need to effect arrest. In Joginder Kumar v. State of Uttar Pradesh and Others [(1994) 4 SCC 260], it was held that no arrest can be made merely because it is lawful to do so, and the exercise of power must be for a valid purpose. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694], it was held that arrest should be the last option, and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. In Arnesh Kumar v. State of Bihar and Another [(2014) 8 SCC 273], the Supreme Court, referring to the amendment of law in Section 41 of Cr.P.C., in the light of recommendations of the Law Commissions, directed that arrest may be justified only if there is 'credible information' or 'reasonable suspicion' and if the arrest was necessary to prevent further offence or for proper investigation or to check interference with the evidence. Thus, the law is settled that the arrest of a person could be effected only if there was “credible information” and the police officer has “reason to believe” that the offence had been committed and that such arrest was necessary. Before answering whether the arrest of the applicant was justified or not, it is relevant to refer to Section 67 of the NDPS Act as well, which reads as follows:

As stated already, the crime was registered in December, 2025. The notice was issued to the applicant under Section 67 of the NDPS Act for the first time on 04.09.2026, purportedly to call for information from him to ascertain whether he has any involvement in the crime. Pursuant to the said notice, the applicant appeared before the NCB officials on 17.09.2026 and 18.09.2026 and he was thoroughly interrogated. Thereafter, on 24.09.2026, again another notice under Section 67 of the NDPS Act was issued to the applicant requiring him to be present before the NCB officials on 30.09.2026. The said notice has been produced as Annexure 6. Thus, it is clear that on 24.09.2026, when Annexure 6 notice was issued, the NCB had no reason to believe that the applicant was involved in the crime. Otherwise, instead of issuing him a notice asking him to appear on 30.09.2026 to interrogate him to further ascertain his involvement in the crime, he would have been arrayed as an accused and arrested, if necessary, on 24.09.2026 itself. The simple fact that after interrogating the applicant on two days, i.e., 17.09.2026 and 18.09.2026, again another notice was issued on 24.09.2026 asking him to appear for further interrogation, itself shows that till Annexure 6 notice was issued on 24.09.2026, the NCB could not obtain any credible information regarding the involvement of the applicant in the crime and they had no reason to believe that he had committed the offences. Then, the next question is whether the NCB collected any material to have a reason to believe that he committed the offences after 24.09.2026 and prior to his arrest on 28.09.2026. In the objection filed to the bail application, it is stated that on 24.09.2026, the accused Nos.10 and 11 were arrested and on questioning them, they stated about the active involvement of the applicant in the crime. However, there is absolutely no material before me to substantiate the said allegation. For these reasons, I am of the view that the arrest of the applicant on 28.09.2026 after giving him a notice under Section 67 of the NDPS Act requiring him to appear before the investigating agency on 30.09.2026 for the purpose of interrogation, cannot be justified under law.

It is now well settled that the requirement of informing a person of the grounds for arrest is a mandatory requirement of Art.22(1) of the Constitution and Section 47 of the BNSS and absence of the same would render the arrest illegal (See. Pankaj Bansal v. Union of India and Others [(2024) 7 SCC 576], Prabir Purkayastha v. State (NCT of Delhi) [(2024) 8 SCC 254], Vihaan Kumar v. State of Haryana and Others (2025 SCC OnLine SC 269] and Mihir Rajesh Shah v. State of Maharashtra and Another (2025 SCC OnLine SC 2356). It is equally settled that the reasons for arrest, grounds for arrest as well as the quantity of the contraband seized in a case where the offence involved is under the NDPS Act should find a place in the notice under Sections 47 and 48 of the BNSS.

Annexure 7 is the notice given to the applicant under Section 47 of the BNSS and Annexure 8 is the notice issued to the relative of the applicant under Section 48 of the BNSS. A reading of Annexures 7 and 8 would show that the recitals therein do not meet the requirements under Sections 47 and 48 of the BNSS and Art.22(1) of the Constitution.

The case of the prosecution is that the applicant conspired with the remaining accused to procure the contraband involved in the crime and also financed the accused Nos.1 and 2 to purchase the contraband. But in Annexure 7, the specific role of the applicant in the crime, the reasons for arrest, grounds for arrest or the quantity of contraband involved have not been mentioned at all. On the other hand, what is mentioned only is that the applicant is involved in the illicit trafficking of 1.509 kilograms of Methamphetamine which falls short of the requirement expected under Sections 47 and 48 of the BNSS.

For the aforesaid reasons, I hold that the arrest of the applicant is vitiated and accordingly, he is entitled to be released on bail. In the result, the application is allowed on the following conditions: -