Arrest without disclosure of grounds is illegal: Punjab and Haryana High Court
In a significant ruling with wide ramifications, the Punjab and Haryana High Court has made it clear that it is imperative for the investigating agency to supply the grounds of arrest to an accused. Failure on the investigating agency’s part to do so would render the arrest illegal following the negation of the mandatory provisions of law and breach the safeguards guaranteed under of the Constitution.
The ruling came as Justice Mahabir Singh Sindhu declared illegal the arrest of an accused in a drug-linked case involving alleged recovery of foreign currency from his residence and another establishment. An FIR in the matter was registered under the provisions of the Bharatiya Nyaya Sanhita and NDPS Act at the Anti-Narcotics Task Force police station in Mohali. The accused was represented by senior advocate Bipan Ghai with counsel Nikhil Ghai and Akhil Godara.
The court also declared the search and seizure operation carried out at the petitioner’s locked residence in Phagwara was illegal after noting that the police had broken open the lock without recording reasons or informing the Magistrate as mandated under Section 185 of the BNSS.
“Non-supply of the grounds of arrest, as well as the fact that search and seizure was conducted in violation of mandatory provisions of Section 185 of the BNSS, there is no option except to allow the petition. The arrest of petitioner is held to be illegal; remand order dated March 19 passed by JMIC against the petitioner is hereby quashed and set aside, being unsustainable in law,” Justice Sindhu asserted.
Justice Sindhu noted that the entire action against the petitioner appeared rooted in secret information and not on the basis of any mention in the FIR or disclosures by co-accused. “During the course of hearing, the state counsel duly acknowledged that name of petitioner was not mentioned in the FIR; nor it surfaced on disclosure made by any co-accused; rather he has been nominated on the basis of some secret information,” the court asserted.
Justice Sindhu added it was nowhere discernible from the perusal of police papers that grounds of arrest were supplied to the petitioner. Rather, only the arrest memo was handed over. Referring to the verdicts by the Supreme Court in Pankaj Bansal and Prabir Purkayastha cases, the bench asserted that courts had emphasised the necessity of providing written grounds of arrest to the accused as a matter of course and without exception.
“There is force in the argument by senior counsel that it was imperative for the investigating agency to supply the grounds of arrest to the petitioner, but they miserably failed to do so and thus, negated the mandatory provisions of Section 50 of the CrPC as well as breached the safeguards provided under Article 22 of the Constitution. As such, the initial arrest of the petitioner was wholly illegal; hence unsustainable in law. Even the observations recorded by JMIC to the effect that grounds of arrest were supplied to the accused, are factually incorrect and contrary to records; thus, liable to be set aside and so ordered,” Justice Sindhu ruled.
