Research › Search › Judgment

High Court of Karnataka · body

2025 DAILYLAW 26749 (KAR)

BROU FRANCIS KONAN v. THE STATE OF KARNATAKA

CRL.P/7150/2025 · 2025-06-24

S R Krishna Kumar

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 7150 OF 2025 (482(Cr.PC) / 528(BNSS) BETWEEN: BROU FRANCIS KONAN, S/O KONAN, AGED ABOUT 28 YEARS R/AT NO.2207 GROUND FLOOR, MANJUNATH KUTIERA, 1ST CROSS JUNCTION, CHENNAKESHAVA LAYOUT, BEHIND CMR SCHOOL, ST. THOMAS TOWN POST, BENGALURU – 560 084 NATIVE ADDRESS IVORY COAST, ABIDJAN, NIGERIA – 225. …PETITIONER (BY SRI. BALAKRISHNA M. R., ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY BANASWADI POLICE STATION, REPRESENTED BY ITS STATE PUBLI PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560 001 2. THE POLICE SUB-INSPECTOR, BANASWADI POLICE STATION, BENGALURU CITY – 560 043 …RESPONDENTS (BY SRI. B. N. JAGADEESHA, ADDL. SPP FOR R1 & R2) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C (U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER OF ARREST DATED 24.01.2024 BY THE RESPONDENT NO.1 POLICE AND ORDER OF REMAND DATED 25.01.2024 PASSED BY THE HON’BLE MMTC-I, AT BENGALURU IN CR.NO.60/2024, FOR THE OFFENCES PUNISHABLE UNDER SECTION 8(c) AND 22(c) OF NDPS ACT, U/S 14 OF Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 FOREIGNERS ACT, PENDING ON THE FILE OF THE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS) BENGALURU (CCH-33) IN SPL.C.NO.1340/2024 AND SET AT LIBERTY FORTH WITH. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, the petitioner seeks the following reliefs: “a. Set aside the order of arrest dated 24.01.2024 by the Respondent No.1 Police and order remand dated 25.01.2024 passed by the Hon’ble MMTC-I, at Bengaluru in Crime No.60/2024 for the alleged offences punishable u/ss. 8(c) and 22(C) of the NDPS Act & u/s. 14 of Foreigners Act and now pending on the file of the XXXIII Addl. City Civil and Sessions Judge & Spl. Judge (NDPS) Bengaluru, (CCH-33) in Spl.No.1340/2024 and set at liberty forthwith. b. Pass such other reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.” 2. Heard learned counsel for the petitioner and learned counsel for respondent Nos.1 and 2 and perused the material on record. 3. Learned counsel for the petitioner submits that the present petition is directly and squarely covered by the decisions of - 3 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 a Co-ordinate Bench of this Court in the cases of Mr. Uzowum Chickdwum Levonus @ Livousa Vs. State of Karnataka and others – Crl.P.No.4000/2025 dated 27.03.2025 and Okeke Christopher Okwdili Vs. State of Karnataka and others – Crl.P.No.5002/2025 dated 16.04.2025 and the present petition may be disposed of in terms of the aforesaid decisions. 4. In the case of Mr. Uzoum Chickdwum Levonus @ Livousa’s case, a Co-ordinate Bench of this Court held as under: “The petitioner, who has been arrested in Crime No.59/2024 for the offences punishable under Sections 8(c), 22(c) of NDPS Act, 1985 is before this Court seeking relief. 2. Heard Sri Hashmat Pasha, learned Senior Counsel representing petitioner's counsel and learned High Court Government Pleader for the respondent - State. 3. The petitioner's contention is that his arrest stands vitiated for non-compliance of Articles 21 and 22(1) of the Constitution of India and also Sections 47 and 48 of BNS, 2023. Perusal of the grounds of arrest furnished by the State indicated that the petitioner was informed that he is selling drugs to college students, software engineers, known clients and others to make unlawful gain. Thus, a case came to be registered against him in Crime No.59/2024 for the aforesaid offences. - 4 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 3.1. The petitioner's further contention is that the grounds of arrest does not disclose full particulars of the offence committed by the petitioner, as to, whether the alleged offences are bailable or not, or with respect to the quantity seized from the possession of the petitioner. Although the grounds of arrest has been served on the petitioner, however, the same is in Kannada language, and admittedly, the petitioner is a foreigner, who does not understand Kannada language. Therefore, the Police Inspector was required to serve the grounds of arrest on the petitioner, in the language known to him. 4. The Hon'ble Apex Court in the case of Vihaan Kumar v. State of Haryana, 2025 INSC 162, has ruled that as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested . The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. 5. A coordinate Bench of this Court in Crl.P No.6578/2019 had issued guidelines stating that as soon as the offence under Foreigners Act and other Laws is detected, and there is a strong prima facie material to show that the detected person is a foreign national, and if the said person has no passport or visa, or if the visa is expired, and he has no right to stay in Indian Territory, proceedings shall be immediately undertaken to deport such foreign national to his - 5 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 nation, without unnecessary delay, from the date of registration of FIR against such person. 5.1. It was further held that if for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offences are under the Foreigners Act and/or also under any other Laws for the time being in force, and if their visa was cancelled or lapsed, or if they had no passport, or if they were illegal immigrants, then the Courts shall specifically order to keep such persons in detention centers, unless the competent authority has passed any order under section 3(2)(a) to (f) of Foreigners Act, 1946. 6. The Hon'ble Apex Court in the case of Prabir Purkayastha -vs- State (NCT of Delhi) - (2024) 8 SCC 254 referred to its earlier decision in the case of Roy V.D -vs- State of Kerala - (2000) 8 SCC 590, wherein it was held that the life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with, except under the authority of law, and that the same principle has been recognized and applied in all civilized countries. Article 21 of the Indian Constitution guarantees protection of life and personal liberty not only to citizens of India but also to aliens. 7. The Hon'ble Apex Court in the case of Vihaan Kumar -vs- State of Harayana and another - 2025 SCC OnLine SC 269, has ruled that failure to comply with the requirement of informing the arrestee of the grounds of his arrest amounts to violation of fundamental right enshrined in Article 22(1) of the Constitution, and also the fundamental - 6 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 right to liberty guaranteed under Article 21 thereof, and therefore, shall vitiate the arrest. 8. In the instant case, the petitioner is a foreign national, and the grounds of his arrest were communicated to the petitioner in Kannada language, and there is no endorsement made in the grounds of arrest that the contents of the arrest memo were read over to the petitioner, and explained to him in the language which the petitioner understands. Therefore, the arrest of the petitioner stands vitiated on the sole ground that the grounds of arrest were not disclosed to the petitioner in the language which he understands, so as to afford the petitioner the right to effectively challenge his arrest. Accordingly, this petition is allowed. i) The order of arrest dated 23.10.2024 and order of remand dated 24.10.2024 passed in Crime No.59/2024 of CCB Police is hereby quashed. ii) The 3rd respondent, Superintendent of Central Prison, Parappana Agrahara, Bengaluru, is hereby directed to release forthwith the petitioner-accused in Crime No.59/2024, of CCB Police, Bangalore City for the offences punishable 8(c) and 22 (C) of the NDPS Act, 1985 subject to the following conditions: i) The petitioner-accused shall execute a personal bond for a sum of Rs.1,00,000/- with one surety for the like sum to the satisfaction of the Trial Court within a period of two weeks from the date of his release; ii) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; - 7 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 iii) The petitioner shall appear before the investigating officer as and when required; iv) The petitioner shall not involve in similar offences in the future; v) The petitioner shall not leave the territorial limits without prior permission of the Investigating Officer. vi) The concerned Jail Authorities are hereby directed to release the petitioner forthwith without any delay and immediately upon a receipt of copy of this order if he is not required for any other cases, if any. vii) The Registry is directed to communicate this order to the Jail Authorities concerned forthwith without any delay through e-mail and telephonically. 9. It is open for the respondents to move the Registration Officer appointed under Rule 3 of the Foreigners Rules. 10. It is also made clear that under Section 3(2) of the Foreigners Act, if the Competent Authority feels that by means of imposing restrictions on the movements of the petitioner, by taking bond - with or without surety, or in alternative to the enforcement of any of the prescribed or other specific restrictions or conditions, so as to observe or control the movements of the petitioner, such orders may be passed by the Competent Authority with intimation to the concerned Court. 11. The learned XXXIII Additional City Civil And Sessions Judge, Special Cases for NDPS, Bangalore City to conclude the trial in Spl.CC No.131/2025 within four months. 12. The petitioner to appear before the Trial Court as and when summoned, and cooperate for conclusion of the - 8 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 trial, failing which, the Trial Court is permitted to pass appropriate orders. Hand delivery ordered.” 5. In the case of Okeke Christopher Okwdili’s case, a Co-ordinate Bench of this Court held as under: The petitioner who has been charge sheeted for the offence punishable under Section 8(c) and 22(C) of NDPS Act is before this Court seeking relief. The petitioner was arrested on 16.01.2025 in Crime No.15/2025 registered for the aforesaid offences. Petitioner's contention is that grounds of arrest were not served on the petitioner at the time of arrest and therefore, the same stands vitiated for non-compliance of Section 52(1) of the NDPS Act, Section 47(1) of BNSS and Article 22(1) of the Constitution of India. 2. Learned High Court Government Pleader for the State submitted that the arrest memo clearly discloses that the grounds of arrest were informed at the time of arrest and therefore, the same cannot be said to be arbitrary and illegal. 3. The perusal of the arrest memo indicates that except mentioning the crime number and the offences alleged against the petitioner grounds of arrest are not disclosed to the petitioner at the time of arrest. 4. The Hon'ble Apex Court in the case of Vihaan Kumar -vs- State of Haryana & anr. - in 2025 INSC 162, following the earlier decision has held that the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. - 9 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 Article 22 is included in Part III of the Constitution under the heading of fundamental rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as arrest takes place or may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1) of the constitution. It will also amount to depriving the arrestee of his personal liberty. The reason is that, as provided in Article 21 of the constitution, no person shall be deprived of his right to life or personal liberty except in accordance with the procedure established by law. 5. Since, the grounds of arrest were not served on the petitioner, the arrest stands vitiated for violating Article 22(1) of the Constitution of India. In these circumstances, the petitioner is entitled to be released from judicial custody forthwith. 6. In the light of foregoing, the arrest of the petitioner is in violation of Section 52(1) of the NDPS Act and Article 22(1) of the Constitution of India and the same stands vitiated for not complying with the mandatory provisions. Hence, the petition is allowed. The order of arrest dated 16.01.2025 issued by respondent No.1 and the order of remand dated 17.01.2025 passed by the Chief Judicial Magistrate (CJM) Bengaluru Rural District, Bengaluru in Crime No.15/2025 is hereby quashed. 7. The respondent No.3 is hereby directed to release the petitioner forthwith from the judicial custody in relation to - 10 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 Crime No.15/2025 registered by Soladevanahalli Police Station, subject to following conditions:- i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with one surety for the likesum, to the satisfaction of the jurisdictional Court; ii) The petitioner shall appear before the Trial Court as when summoned. iii) The petitioner shall not tamper with the prosecution witness. iv) The Registry to communicate this order to respondent No.3 through electronic mail. v) Needless to state that the competent authority may pass an appropriate order under Section 3 of the Foreigners Act, 1946, if permissible in law.” 6. Under these circumstances, the present petition is also allowed and disposed of in terms of the aforesaid decisions of this Court and petitioner-accused is entitled to be released on bail by imposing certain conditions. Further, the respondents and concerned Jail Authorities are hereby directed to release the petitioner-accused, forthwith, without any delay. 7. In the result, I pass the following: - 11 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 ORDER i) The petition is hereby allowed and disposed of in terms of the decisions of a Co-ordinate Bench of this Court in the cases of Mr. Uzowum Chickdwum Levonus @ Livousa Vs. State of Karnataka and others – Crl.P.No.4000/2025 dated 27.03.2025 and Okeke Christopher Okwdili Vs. State of Karnataka and others – Crl.P.No.5002/2025 dated 16.04.2025. ii) Consequently, the impugned order of arrest dated 24.01.2024 by respondent No.1-Police and the order of remand dated 25.01.2024 passed by the Hon’ble MMTC-I, Bengaluru, in Crime No.60/2024 of respondent No.1-Police, is hereby quashed. iii) The respondents and concerned Jail Authorities are hereby directed to release the petitioner-accused in the aforesaid Crime No.60/2024, forthwith, without any delay and immediately upon a receipt of a copy of this order, if he is not required in any other cases, if any, subject to the following conditions: (a) The petitioner-accused shall execute a personal bond for a sum of Rs.1,00,000/- with one surety for the like sum to the satisfaction of the Trial - 12 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 Court , within a period of two weeks from the date of his release; (b) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; (c) The petitioner shall not appear before the Investigating Officer as and when required; (d) The petitioner shall not involve in similar offences in the future; (e) The petitioner shall not leave the territorial limits without prior permission of the Investigating Officer. 8. The Registry is directed to communicate this order to the Jail Authorities concerned forthwith without any delay through e-mail and telephonically. 9. It is open for the respondents to move the Registration Officer appointed under Rule 3 of the Foreigners Rules. 10. It is also made clear that under Section 3(2) of the Foreigners Act, if the Competent Authority feels that by means of imposing restrictions on the movements of the petitioner, by taking bond – with or without surety, or in alternative to the enforcement of - 13 - HC-KAR NC: 2025:KHC:22229 CRL.P No. 7150 of 2025 any of the prescribed or other specific restrictions or conditions, so as to observe or control the movements of the petitioner, such orders may be passed by the Competent Authority with intimation to the concerned Court. 11. The learned XXXIII Additional City Civil and Sessions Judge and Spl. Judge (NDPS) Bengaluru, (CCH-33), is directed to conclude the trial in Spl.C.No.1340/2024 as expeditiously as possible. 12. The petitioner is directed to appear before the Trial Court as and when summoned, and co-operate for conclusion of the trial, failing which, the Trial Court is permitted to pass appropriate orders. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 4 Sl No.: 6