Anwar vs State Of Kerala
2025 Latest Caselaw 7617 Ker

Kerala High Court

Anwar vs State Of Kerala on 4 April, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

BAIL APPL. NO.4547 OF 2025       1


                                                  2025:KER:25544

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947

                    BAIL APPL. NO. 4547 OF 2025

   CRIME NO.46/2023 OF Agali Excise Range Office, Palakkad


PETITIONER(S)/ACCUSED NO.1:

             ANWAR
             AGED 35 YEARS, S/O. MUHAMMED, AAVIYORA, KIZHAKKOTH
             VILLAGE, THAMARASSERY TALUK, KOZHIKODE DISTRICT,,
             PIN - 673572

             BY ADVS.
             P.MOHAMED SABAH
             LIBIN STANLEY
             SAIPOOJA
             SADIK ISMAYIL
             R.GAYATHRI
             M.MAHIN HAMZA
             ALWIN JOSEPH
             BENSON AMBROSE

RESPONDENT (S)/STATE & COMPLAINANT :

     1       STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, PIN - 682031
     2       THE EXCISE CIRCLE INSPECTOR
             EXCISE RANGE OFFICE, AGALI, AGALI P.O,
             PALAKKAD DISTRICT, PIN - 678581

BY ADV. :

             SR PP-NOUSHAD K A


            THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO.4547 OF 2025    2


                                              2025:KER:25544

                P.V.KUNHIKRISHNAN, J
              ------------------------------------
                  B.A.No.4547 of 2025
              ------------------------------------
          Dated this the 04th day of April, 2025


                             ORDER

The petitioner is the 1st accused in Crime No.46 of

2023 of Agali Excise Range Office, Palakkad, which is now

pending as SC No.415/2024 on the file of Additional District

and Sessions Court - V (ADHOC-III), Palakkad. The above

case is registered against the petitioner and others

alleging offences punishable under Sections 20(b)(ii)(C), 25

and 29 of the Narcotic Drugs and Psychotropic Substances

(NDPS) Act, 1985.

2. The prosecution case is that, on 13.11.2023 at

about 08.00 PM, the accused Nos.1 to 4 were found in

possession of 120 Kg of Ganja. Hence, it is alleged that the

accused committed the offence. The petitioner who is the

1st accused was arrested on 14.11.2023.

3. Heard the learned counsel appearing for the

petitioner and the learned Prosecutor.

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4. The counsel for the petitioner submitted that

the petitioner is in custody for the last one year and four

months. The counsel relied on the judgments of the Apex

Court in Ankur Chaudhary v. State of Madhya

Pradesh [2024 Live Law (SC) 416], Nitish Adhikary @

Bapan v. The State of West Bengal [SLP to Appeal

(Crl.) No.5769 of 2022] and also Hasanujjaman and

others v. The State of West Bengal [SLP to Appeal

(Crl.) No.3221 of 2023] and submitted that when there

is incarceration for more than one year and four months,

the rigour under Section 37 of the NDPS Act can be diluted.

The counsel submitted that, in this case the petitioner is in

custody from 14.11.2023 and therefore the petitioner is

entitled bail.

5. The Public Prosecutor opposed the bail

application. Public Prosecutor submitted that the quantity

of contraband seized from the petitioner is commercial

quantity and hence Section 37 of the NDPS Act is

attracted.

6. This Court considered the contentions of

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the petitioner and the Public Prosecutor. In Ankur

Chaudhary's case (Supra) the Apex Court observed like

this:-

"6. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered."

7. In Hasanujjaman's case (supra), the

Apex Court considered a case in which the accused were in

custody for one year and four months. In that case also

the contraband seized is commercial quantity. Even then

the Apex Court granted bail.

8. In Nitish Adhikary's case (supra), the Apex

Court observed like this:-

"During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022.

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The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents."

9. This Court in Shuaib A.S v. State of Kerala

[2025 SCC Online 618], observed like this:-

"10. Anyhow, as of now, Crl.M.C.No.8400/2024 filed by the NCB seeking to examine certain witnesses, was disposed on 06.01.2025 by another learned Single Judge. As per the order, even though the learned Single Judge found the reason for dismissal of the earlier petition, viz., CrlM.P.No.4651/2024, without assigning reasons for summoning the additional witnesses was to be justified, one more opportunity was given to the prosecution to file a fresh 311 petition clearly stating the reasons for examining the additional witnesses in consideration of the seriousness of the offences and this Court also observed that the time limit for disposal issued by this Court in the earlier bail application of the accused need not deter the court from exercising the power under Section 311 of Cr.P.C. As of now, the Special Court has to consider a fresh 311 petition to be filed within one week from 06.01.2025 to proceed further in this matter. It is worthwhile to note that Section 37 of the NDPS Act is a special provision which would deal with grant of bail

2025:KER:25544

to the accused persons where commercial quantity of contraband was involved. But as per the decision cited by the Apex Court, it was observed that, failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act be considered. Going by the observation of the Apex Court, in cases where prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, it overrides Section 37(1)

(b) of the NDPS Act. In order to hold that Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act, the delay in trial at the instance of the prosecution is the `decisive factor'. That is to say, the delay should be the sole contribution of the prosecution and the accused has no role in getting the matter prolonged, in any manner. In cases, where dilatory tactics even in remote possibility, negligible liability, bare minimum or mere impossibility is the volition, hand out or benefactum of the accused, it could not be held in such cases that personal liberty under Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act. Thus in

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cases where commercial quantity of contraband is involved and the accused continues in custody for years, say for example, for more than 3 years in the instant case, where the laches on the part of the prosecution alone is the reason in finalising the trial, continuous incarceration shall be addressed so as to protect liberty of an individual embodied under Article 21 of the Constitution, which overrides the embargo created under Section 37(1)(b) of the NDPS Act. That is to say, in a case where trial could not be completed due to the absolute laches on the part of the prosecution, bail plea at the instance of the accused on the said ground is liable to be considered in suppression of the rider under Section 37(1)(b) of the NDPS Act, in tune with Article 21 of the Constitution of India.

11. In the instant case, it is emphatically clear that the prosecution failed to incorporate all the necessary witnesses in the report and after having examined all the witnesses already cited, the prosecution filed a petition under Section 311 of Cr.P.C to summon additional witnesses, without showing the purpose of their examination. The same was dismissed by the trial court holding so, as the prime ground. This Court also was not inclined to interfere with the finding of the Special Court, though in the said order, one more

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opportunity was provided to the prosecution to file a fresh petition under Section 311 of Cr.P.C with reasons in consideration of the gravity of the offences alleged to be committed. Thus it is evident that the lethargy on the side of the prosecution is the reason for non disposal of the matter as directed by this Court within the time frame and the petitioner in no way has played anything which would stand in the way of trial even on remote possibility or mere impossibility. In such a case, in consideration of the personal liberty of the petitioner guaranteed under Article 21 of the Constitution of India which overrides the effect of Section 37(1)(b) of the NDPS Act, the petitioner, who has been in custody from 29.01.2022 is liable to be released on bail.

(underline supplied)

10. Admittedly, in this case the quantity of

contraband seized is commercial quantity. The petitioner

in this case is in custody from 14.11.2023. In such

circumstances, I am of the considered opinion that the

petitioner can file a fresh bail application before the trial

court and there can be a direction to consider that bail

application in the light of the principles laid down by the

Apex Court and this Court in the above judgments.