Failure To Provide Written Grounds Of Arrest A 'Curable Defect' If No Prejudice Caused To Accused: Delhi High Court

"In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail... procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail." Delhi High Court, in a significant ruling, held that a procedural lapse in furnishing written grounds of arrest to an accused does not automatically entitle them to bail, provided there was substantial compliance and no demonstrable prejudice was caused.

A Single Judge Bench of Justice Girish Kathpalia observed that while the constitutional mandate under Article 22(1) is sacrosanct, the "prejudice-oriented test" must be applied when examining alleged procedural lapses, especially in serious offences involving commercial quantities of contraband.

The petitioner, Amar Thapa, was apprehended on January 17, 2025, from a premises in Kotla Mubarakpur following secret information. A search conducted by the police led to the recovery of 1.516 kg of Charas, classified as a commercial quantity under the NDPS Act. The petitioner sought regular bail primarily on two technical grounds: discrepancies in the malkhana register regarding the seals used on the contraband and the alleged failure of the investigating agency to provide written grounds of arrest at the time of apprehension.

The primary question before the court was whether the non-supply of written grounds of arrest at the time of apprehension, as mandated by subsequent Supreme Court rulings, would vitiate the arrest and entitle the accused to bail under the NDPS Act. The court also examined whether discrepancies in the malkhana entries and seal protocols constituted "reasonable grounds" to believe the accused was not guilty under Section 37 of the NDPS Act.

Rigors Of Section 37 NDPS Act

The Court began by emphasizing that since the recovery involved a commercial quantity of Charas, the twin conditions stipulated under Section 37 of the NDPS Act were applicable. The Bench noted that the provision is couched in negative expression, meaning no person accused of such offences shall be released on bail unless the court is satisfied that there are reasonable grounds for believing he is not guilty and is not likely to commit any offence while on bail.

Malkhana Entries and Purity of Contraband

Regarding the argument about discrepancies in Register No. 19, the Court found that the IO (SI Naveen Gurjar) had sealed the parcels with the seal 'NG' and sent them to the SHO for perusal. The SHO subsequently counter-sealed the parcels with his seal 'PSM' to ensure the purity of the material. The Bench held that this procedure did not provide a reasonable ground to believe the accused was innocent, as counter-sealing by a senior officer is a standard practice to maintain the integrity of evidence.

Evolution Of Law On Grounds Of Arrest

The Court conducted an extensive analysis of the legal position regarding the supply of grounds of arrest, traversing through the precedents of Prabir Purkayastha vs State (NCT of Delhi), Pankaj Bansal vs Union of India, and the more recent Mihir Rajesh Shah vs State of Maharashtra. The Bench noted that while Pankaj Bansal mandated written grounds, subsequent clarifications in State of Karnataka vs Sri Darshan established that written communication is not an "inflexible requirement in all circumstances."

The Prejudice-Oriented Test

Justice Kathpalia highlighted that the mere absence of written grounds does not render an arrest illegal unless it results in demonstrable prejudice or denial of a fair opportunity to defend. The Court observed that the petitioner was legally represented from the outset and had applied for bail shortly after arrest, evidencing an informed understanding of the accusations.

"In order to secure bail for failure to supply grounds of arrest, the accused must show the prejudice, if any caused to him by the said procedural lapse and in the absence of demonstrable prejudice, the non-supply of grounds of arrest is at best a curable defect."

Prospective Application Of Mihir Shah Ruling

The Bench pointed out a crucial chronological factor: the accused was arrested on January 17, 2025, whereas the legal position regarding the mandatory supply of written grounds was elucidated with clarity in the Mihir Rajesh Shah case only on November 6, 2025. The Court held that the investigator in the present case could not be said to have "knowingly flouted" any direction of the Supreme Court that had not yet been pronounced.

Substantial Compliance vs. Rigid Formats

The Court examined the arrest memo and found that paragraphs 9(a) to 9(e), though headed "reasons of arrest," actually disclosed the grounds of arrest. These included preventing the accused from committing further offences, ensuring proper investigation, and preventing the tampering of evidence. The Bench concluded that this constituted substantial compliance with the requirement to inform the arrestee why he was being taken into custody.

"There is no sharpline distinction between what is generic information and what is specific information. Rather, there cannot be such distinction as in some cases, what may appear to be a generic information may also be specific to the accused."

Balancing Individual Liberty And Social Stability

In its concluding remarks, the Court addressed the gravity of drug peddling, noting its "pernicious impact" on the collective productivity of society. The Bench stated that illicit wealth from drug trade often fuels organized crime and terrorist activities, posing a threat to national security. The Court refused to release the petitioner, noting a high probability of him absconding to his native place in Nepal, which would block police efforts to track the larger network.

Finding no reasonable grounds to believe the petitioner was not guilty and noting the lack of demonstrable prejudice regarding the arrest procedure, the High Court dismissed the bail application. The Bench reiterated that procedural technicalities cannot be allowed to triumph over the gravity of the offence and the interests of society when substantial legal requirements have been met.

Date of Decision: July 10, 2026