Shrawan Joshi Vs Union of India (Bombay High Court)
Summary: The Bombay High Court, comprising Justice Bharati Dangre and Justice Manjusha Deshpande, allowed a criminal writ petition filed by Shrawan Joshi challenging his arrest on 21 May 2024 in connection with alleged offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner contended that the arrest violated Section 50 of the Code of Criminal Procedure, 1973, and Article 22 of the Constitution of India because the investigating authorities had failed to communicate the specific grounds necessitating his arrest in writing. The central question before the Court was whether the arrest memo sufficiently disclosed the factual material connecting the petitioner with the alleged offences or merely recorded a general belief that he had committed offences under the NDPS Act.
The prosecution case arose from the interception of an international parcel allegedly addressed to the petitioner. According to the arrest memo, officers of the Special Intelligence and Investigation Branch, Airport Special Cargo Commissionerate, Mumbai, examined a consignment containing creamish white material suspected to be methamphetamine weighing 51 grams and 406 orange-coloured pills suspected to be MDMA, together with powdered material, with a stated total weight of 230 grams. The suspected substances were allegedly concealed inside four plastic bottles. The petitioner was sought to be connected with the consignment principally through his statement recorded under Section 67 of the NDPS Act. The High Court referred to the Supreme Court’s ruling in Tofan Singh Vs State of Tamil Nadu and treated the reliance placed on the petitioner’s Section 67 statement as legally ineffective for the purpose under examination.
On examining the arrest memo, the High Court found that it failed to establish a meaningful connection between the suspected narcotic substances and the petitioner once the Section 67 statement was excluded from consideration. Although the officer had recorded a reason to believe that the petitioner committed offences under Sections 22(c), 23(c), 27, 27A, 28, 29 and 35 read with Section 8(c) of the NDPS Act, the memo did not adequately disclose the underlying facts justifying that conclusion. The Court also observed that references to the petitioner having been permitted to speak with his father and having been provided food and water did not absolve the investigating officer of the separate obligation to communicate the grounds of arrest.
The affidavit subsequently filed by the Inspector of the Special Intelligence and Investigation Branch provided a considerably more detailed account. It stated that specific intelligence had been received concerning a parcel arriving from Belgium, following which officers seized the suspected contraband on 16 May 2024. Permission was obtained from the Narcotics Control Bureau for a controlled delivery operation, and a dummy parcel was prepared. The petitioner allegedly approached the postal facility to enquire about the parcel, subsequently paid customs duty, signed a delivery receipt and submitted a self-attested copy of his Aadhaar card. He reportedly stated that he was collecting the parcel on behalf of his friend, Kyle Cummings. The affidavit also referred to the statements of the petitioner and Kyle Cummings. The High Court observed that these were the factual circumstances from which the grounds of arrest could be discerned, but they had not been adequately conveyed through the original arrest memo.
Relying upon Prabir Purkayastha Vs State (NCT of Delhi) and Pankaj Bansal Vs Union of India, the Bench reiterated that grounds of arrest are distinct from general reasons for arrest. The grounds must include the relevant material available to the investigating officer which necessitates the arrest of the particular individual, enabling the accused to understand the accusation and meaningfully contest custodial remand. The Court held that an exhaustive explanation in a subsequent affidavit or remand application could not substitute for the required communication of grounds at the relevant stage. It found that the failure had caused grave prejudice to the petitioner and defeated the constitutional purpose of the safeguard.
Consequently, the High Court held that the arrest effected on 21 May 2024 violated Section 50 CrPC and Article 22 of the Constitution. The arrest and the remand order dated 21 May 2024 passed by the Sessions Court, Mumbai, were declared null and void, and the writ petition was made absolute. The petitioner was directed to be released on bail upon furnishing surety to the satisfaction of the Sessions Court, 42nd Court, Mumbai. The decision concerned the validity of the arrest procedure and the consequential remand, rather than a final determination of the alleged NDPS offences.
Cases Discussed
1. Tofan Singh Vs State of Tamil Nadu (Supreme Court); Criminal Appeal No. 152 of 2013 and connected matters; 29/10/2020; AIR 2020 SC 5592; (2021) 4 SCC 1 — Relied upon regarding the inadmissibility of confessional statements recorded under Section 67 of the NDPS Act. The Court excluded reliance on the petitioner’s Section 67 statement while examining the sufficiency of the grounds disclosed in the arrest memo.
2. Prabir Purkayastha Vs State (NCT of Delhi) (Supreme Court); Criminal Appeal No. 2577 of 2024; 15/05/2024; 2024 SCC OnLine SC 934; (2024) 8 SCC 254 — Followed in distinguishing specific grounds of arrest from general reasons for arrest and in recognising the constitutional requirement of meaningful communication before remand proceedings.
3. Pankaj Bansal Vs Union of India & Ors. (Supreme Court); Criminal Appeal Nos. 3051–3052 of 2023; 03/10/2023; 2023 SCC OnLine SC 1244; (2024) 7 SCC 576 — Followed concerning the requirement to communicate written grounds of arrest and the consequences of non-compliance with constitutional safeguards.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
1. The petition is filed alleging violation of Section 50 of the Code of Criminal Procedure and infringement of the fundamental right conferred under Article 22 of the Constitution of India, which is a right of being informed about the grounds of arrest.
In furtherance of the complaint lodged by F.No. SG/INV-14/2024-25/SIIB (APSC) for the offence punishable under Section 8(c), 22(c), 23(c), 27, 28, 29 and 35 of the NDPS Act, 1985, the petitioner came to be arrested on 21/05/2024, and it is alleged that this arrest is not in accordance with law as the grounds of arrest are not communicated to him in writing.
2. The learned counsel Mr. Taraq Sayed, representing the petitioner has invited our attention to the arrest memo dated 21/05/2024, which in the preface refer to a parcel with a tracking number, (consignee: Shrawan Joshi- the petitioner) being examined by the officers of SIIB, APSC resulting into a creamish white material appearing to be psychotropic substances and purported to be Methamphetamine (weighing 51 gms), and 406 orange colour pills, purported to be MDMA alongwith some in powder form (total weight 230 gms) wrapped in aluminum foil and concealed inside four plastic bottles being seized.
It is with this consignment, the petitioner is sought to be connected and the basis for this appear to be his own statement recorded on 21/05/2024, under Section 67 of the NDPS Act. Admittedly, in the wake of the decision of the Apex Court in case of Tofan Singh vs. The State of Tamil Nadu, AIR (2020) SC 5592, the statement that Section 67 has no legal value and therefore the said part in the arrest memo is without any legal consequence.
The arrest memo then clearly jump on the power exercised by the officer, with the Airport Special Cargo Commissionerate, Mumbai conferred under Section 42 of the NDPS Act and the officer record the reason to believe that he has committed an offence punishable under Section 22(C), 23(C), 27, 27A, 28, 29 and 35 r/w Section 8(c) of the NDPS Act, 1985, in connection with the seized creamish white material, appearing to be psychotropic substances along with the orange pills, purportedly MDMA.
3. When we have perused the arrest memo, we fail to find the connect, in absence of the statement of the petitioner recorded under Section 67 of the NDPS Act.
Mere indication below the said statement that the petitioner has been allowed to talk to his father and was provided with food and water, do not absolve the investigating officer from his responsibility of communicating the grounds of his arrest.
4. Undisputedly, when we have perused the affidavit in reply filed by the Inspector in Special Intelligence and Investigation Branch, APSC Commissionerate, Mumbai, we could garner the grounds of his arrest.
The background in the affidavit highlight that specific intelligence was received by SIIB, APSC, that a parcel with the tracking number to be received in the name of Sharwan Joshi from Belgium contained Narcotic Drugs and Psychotropic Substances. This parcel was examined under panchnama by the officers, which resulted into recovery of the alleged Psychotropic Substances.
On the ground of the reasonable belief, as the goods were seized on 16/05/2024 itself, a trap was laid to apprehend the offender and the process was set into motion, by addressing a communication to DG/NCB, requesting for permission of controlled delivery of the parcel. The permission was received and to conduct the controlled delivery operation, a dummy parcel was created by the officers and the status of the parcel was changed in the postal tracking system to avoid any suspicion.
The deponent further state that necessary instructions were issued to the team of officers of SIIB to take their positions and wait for the suspect to come and collect the parcel.
On 20/05/2024, allegedly the petitioner, came inquring about the parcel but was informed that it is not yet received and he was asked to inquire after some time.
Once again he returned and inquire about the parcel and also paid the customs duty to the Postal Assistant at the window delivery and put his signature on delivery receipt and also submitted the self-attested copy of his Aadhar card, when he was apprehended and was identified to be Shrawan Joshi, the petitioner.
He informed that he had collected the parcel on behalf of his friend Kyle Cummings.
This is the background in which the petitioner came to be arrested and heavy reliance is placed upon his voluntary statement as well as the statement of Kyle Cummings.
This is only on reading of the affidavit, which run into some 8 pages, we could discern the grounds for arrest of the petitioner.
5. This is a very specific reason that the Apex Court in case of Prabir Purkayastha vs/ State (NCT of Delhi), 2024 SCC Online SC 934, has drawn a distinction between ‘grounds of arrest’ and the ‘reasons of arrest’ by clearly contemplating that grounds of arrest are distinct from reasons for arrest and it necessarily would cover all the material in the hand of the Investigating Officer, with which the person to be arrested is apprised of, so that he has an early opportunity of taking the definite stand when he is produced for remand.
No justification, whatsoever though offered an exhaustive form in the remand application would justify non-furnishing of the ‘grounds of arrest’ before the arrest is effected.
6. This is a classic case, where we have noted that, the arrest memo which comprises of three distinct facts, by ignoring the fact no.2 about the statement of Shrawan Joshi recorded under section 67, since it is not permissible to rely upon the said statement, we find complete absence of connect between the preface in the arrest memo in paragraph no.1 and the exercise of power by the officer, who has merely recorded that he has reason to believe that the consignee of the cosigner Shrawan Joshi has committed an offence punishable under NDPS Act.
In absence of the details, which are now furnished before us in the affidavit in reply, we find that non communication of the grounds of arrest to the petitioner has definitely caused grave prejudice and is clearly in the teeth of the law laid down by the Apex Court in case of Pankaj Bansal vs Union of India, 2023 SCC Online 1244 as well as Prabir Purkayste (supra), as it has defeated the very purpose of communication of the grounds of arrest to the petitioner before he is produced before the Magistrate for the purposes of remand.
Had the grounds stated in the affidavit in reply filed by the officer before us on 11/11/2024, could have been crystallized and communicated to the petitioner, this unfortunate situation could have been avoided.
Since we are bound by the law laid down by the Apex Court as well as the sacrosanct principle contained in Article 22(1) of the Constitution of India, which has now been translated into communication of the grounds of arrest ‘in writing’ and since there is no denial of the aspect that the grounds of arrest are not communicated in writing and what is communicated is only the contents of the arrest memo, which according to us by no stretch of imagination deserve to be construed as grounds of arrest as indicated in Pankaj Bansal (supra).
7. Resultantly, the arrest of the petitioner is illegal and for the very same reason the subsequent remand orders also cannot be sustained, in absence of the grounds of arrest being communicated to the petitioner.
Resultantly by declaring the arrest of the petitioner effected on 21/05/2024 and the remand order dated 21/05/2024, passed by the Sessions Court, Mumbai as null and void, since the arrest has been effected in utter disregard to Section 50 of the Code of Criminal Procedure as well as the fundamental right conferred on the petitioner under Article 22 of the Constitution, the Writ Petition is made absolute.
The petitioner is directed to release on bail on furnishing surety to the satisfaction of the Sessions Court, 42nd Court, Mumbai.
