Foreign nationals’ arrest: Informing relatives not mandatory if embassy/FRRO notified, says HC

Kochi: The Kerala High Court has held that when an accused is a foreign national, it is not mandatory to inform their relatives of the grounds of arrest. It is sufficient if the accused has been duly informed and the Foreigners Regional Registration Office (FRRO) or the concerned embassy or consulate has been notified, the court said.

Justice Kauser Edappagath was considering a bail application filed by a Tanzanian national, arrayed as the fifth accused in a case registered by the Kunnamkulam Police under the Narcotic Drugs and Psychotropic Substances Act.

According to the prosecution, accused persons 1 and 2 were found in possession of MDMA and hashish oil. The petitioner allegedly supplied the contraband to accused 3 and 4, who in turn sold it to accused 1 and 2.

The petitioner argued that the mandatory requirement of communicating the grounds of arrest was not complied with and that he was detained in police custody beyond 24 hours before being produced before a magistrate.

Examining the case diary, the court noted that the grounds of arrest were communicated to the petitioner as required under the Bharatiya Nagarik Suraksha Sanhita, though not to any relative or friend. However, since the FRRO was informed with instructions to notify the Tanzanian embassy/consulate, the court held that this amounted to sufficient compliance.

On the issue of alleged illegal detention, the court observed that a Look Out Circular had been issued against the petitioner, and he was intercepted by the Bureau of Immigration at Bengaluru International Airport at 1 am on April 15, 2025, and taken to the airport police station.

The investigating officer subsequently obtained permission to arrest him and formally took custody at 12.39 am on April 16. His arrest was recorded at 2 pm the same day after he was brought to Kunnamkulam police station, and he was produced before the magistrate at 4 pm.

The court held that the petitioner was produced within 24 hours of actual police custody and found no violation of Article 22(2) of the Constitution. On the applicability of section 37 of the NDPS Act, the court noted that the case against the petitioner was primarily based on the confession of the first accused. It reiterated that confessions recorded under section 67 of the NDPS Act are inadmissible as evidence. The only additional material was a ₹15,000 transaction between the first accused and the petitioner.

In the absence of further incriminating material, the court held that the rigour of section 37 would not apply, making the petitioner eligible for bail. The court also considered that the final report had been filed and that the petitioner had been in custody for over 11 months.

The court further observed that under the Foreigners Act, 1946 and the Foreigners Order, 1948, authorities retain the power to detain a foreign national or restrict their movement even after bail is granted.

Referring to precedents such as Frank Vitus v Narcotics Control Bureau and Apple Barua v State of Kerala, the court directed that authorities must be informed of the grant of bail so that appropriate action can be taken.

Since the FRRO Kochi was already impleaded in the case, the court granted bail subject to conditions, including that the FRRO must pass appropriate orders within one month after hearing the petitioner or his counsel. The petitioner's release will depend on such orders.
(With LiveLaw inputs)