Memo of Arrest Not Sufficient - Non-Supply of Grounds of Arrest Violates Fundamental Rights: Punjab & Haryana High Court Orders Quashed Arrest In NDPS Case

“Sublato fundamento cadit opus – once the foundation is removed, the superstructure must fall”: - In a landmark ruling that reaffirms the inviolability of constitutional protections during arrest and investigation, the Punjab and Haryana High Court held that the failure to provide written grounds of arrest and the illegal manner of search and seizure render the petitioner’s arrest and subsequent remand order null and void in the eyes of law.

Justice Mahabir Singh Sindhu declared the arrest “illegal and arbitrary,” and ordered the petitioner’s immediate release, observing that the case was a classic example of constitutional rights being trampled upon under the guise of criminal procedure. The ruling serves as a critical reminder of the judiciary’s role as sentinel of fundamental rights, particularly under Articles 21 and 22 of the Constitution.

"Non-Supply of Grounds of Arrest Violates Article 22 – Arrest Is Unsustainable"

While quashing the arrest, the Court held that the petitioner was never furnished with a written copy of the grounds of arrest, a constitutional mandate enshrined in Article 22(1) and reinforced by Section 47 of the BNSS. Emphasising that this safeguard is not a formality but a fundamental right, Justice Sindhu remarked:

“The Investigating Agency miserably failed to supply the ‘grounds of arrest’ to the petitioner, thus negating the mandatory provisions of Section 47 of BNSS and Article 22 of the Constitution.”

The Court cited the Supreme Court’s decision in Pankaj Bansal v. Union of India (2023 SC OnLine SC 1244), wherein it was held: “It would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception.”

Reinforcing this view, the Court quoted Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 934, which clarified the difference between generic "reasons of arrest" and specific "grounds of arrest":

“The 'reasons for arrest' are formal and generally applicable, whereas the 'grounds of arrest' must be personal, specific, and provided in writing.”

Justice Sindhu found the remand proceedings flawed and without legal basis: “The observations recorded by learned JMIC to the effect that ‘grounds of arrest’ were supplied are factually incorrect and contrary to the record.”

"Search Conducted in Violation of Section 185 BNSS Is Illegal – Evidence Cannot Be Relied Upon"

The High Court also took serious exception to the manner in which the police entered and searched the petitioner’s locked residence and commercial premises. It held that the search was carried out without recording prior reasons, without notice to a Magistrate, and in violation of Section 185 of the BNSS (earlier Section 165 Cr.P.C.).

Justice Sindhu noted: “From the entire police file, it is nowhere discernible that any reason(s) was/were recorded for breaking the lock of the premises or that intimation in terms of Section 185(5) of BNSS was sent to the concerned Magistrate.”

Referring to the Supreme Court’s ruling in State of Rajasthan v. Rehman, AIR 1960 SC 210, the Court observed: “Provisions of Section 165 Cr.P.C. must be followed in the matter of searches in true letter and spirit; failure to do so will render the search illegal.”

He also cited State of Punjab v. Baldev Singh, (1999) 6 SCC 172, where it was held: “An illicit article seized during a search conducted in violation of procedural safeguards cannot be used as evidence of unlawful possession.”

"The Plea of Substantial Compliance Is Rejected – When Rights Are Violated, Strict Adherence Is Required"

Rejecting the State’s attempt to justify the arrest and search by invoking "substantial compliance", the Court was categorical: “When a safeguard or right is provided to an accused, compliance thereof should be made strictly in accordance with law. The plea of ‘substantial compliance’ is hereby rejected.”

In support, the Court relied on State (NCT of Delhi) v. Ram Avtar @ Rama (2011) 12 SCC 207, wherein the Supreme Court held:

“Safeguards cannot be treated as a formality... Non-compliance with provisions would cause prejudice to the accused and amount to denial of a fair trial.”

"Arrest Cannot Be Justified by Later Judicial Orders – Remand Order Quashed as Well"

In response to the State’s argument that judicial remand sanctified the arrest, Justice Sindhu invoked the age-old maxim:

“Sublato fundamento cadit opus” – “Once the foundation is removed, the superstructure must fall.”

He noted that the legality of the arrest itself was defective and thus, subsequent remand could not cure the foundational illegality. Citing Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142, the Court reiterated: “If initial action is not in consonance with law, subsequent proceedings would not sanctify the same.”

Consequently, the remand order dated 19.03.2025 was quashed, and the arrest was declared non est.

Concluding the detailed 20-page judgment, Justice Mahabir Singh Sindhu issued the following operative directions: “Arrest of the petitioner is held to be illegal. Remand order dated 19.03.2025 passed by learned JMIC is hereby quashed and set aside, being unsustainable in law.”

“The petitioner shall be released forthwith, if not required in any other case.”

The Court directed copies of the order to be sent to the concerned Judicial Magistrate First Class (JMIC) and the Superintendent, Central Jail, Amritsar for immediate compliance.

Notably, the Court clarified that its findings were restricted to the legality of the arrest and search procedures, and shall not influence the trial on merits.

Date of Decision: May 12, 2025