Kerala High Court
Abdusalam vs State Of Kerala on 9 April, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.4405 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
BAIL APPL. NO. 4405 OF 2025
CRIME NO.922/2023 OF TOWN NORTH POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.2569
OF 2024 OF HIGH COURT OF KERALA
PETITIONER(S)/ACCUSED NO.2:
ABDUSALAM
AGED 35 YEARS
S/O ALAVI,MALIYEKKAL HOUSE, MOONNIYUR POST,
PARAKKADAVU, MALAPPURAM DISTRICT, PIN - 676313
BY ADVS.
SAM ISAAC POTHIYIL
S.SURAJA
MUHAMMED SUHAIR C.A
RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 STATION HOUSE OFFICER
TOWN NORTH POLICE STATION, PALAKKAD DISTRICT,
PIN - 678001
BY ADV.
PP-G SUDHEER
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.4405 of 2025
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P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.4405 of 2025
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Dated this the 09th day of April, 2025
ORDER
This Bail Application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is an accused in Crime No.922/2023 of Town
North Police Station, Palakkad. The above case is registered against
the petitioner alleging offences punishable under Sections 22(c) and
29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short 'NDPS Act').
3. The prosecution case is that the accused was found in
possession of 161.323 grams of MDMA. The petitioner was arrested
on 13.01.2024.
4. Heard the learned counsel appearing for the petitioner
and the learned Public Prosecutor.
5. The counsel appearing for the petitioner raised a short
point. The counsel relied on the judgment of the Apex Court in
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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
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
13.01.2024 and therefore the petitioner is entitled for bail.
6. The Public Prosecutor seriously opposed the bail
application. The Public Prosecutor submitted that the allegation
against the petitioner is very serious and the quantity of contraband
seized is commercial quantity.
7. This Court considered the contentions of 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
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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."
8. 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 was
commercial quantity. Even then the Apex Court granted bail.
9. 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. The trial is at a
preliminary stage, as only one witness has been examined.
The petitioner does not have any criminal antecedents."
10. 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
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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
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
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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 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
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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 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)
11. Admittedly, in this case the quantity seized is
commercial quantity. The petitioner in this case is in custody from
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13.01.2024. 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.
Therefore, this bail application is disposed of with the
following directions:-
1. The petitioner is free to file a bail application
before the Jurisdictional Court within four weeks
raising all the contentions raised in this bail
application.
2. If such a bail application is received, the
Jurisdictional Court will consider the same and
pass appropriate orders in it, in the light of the
principle laid down by 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], Hasanujjaman and others v.
The State of West Bengal [SLP to Appeal (Crl.)
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No.3221 of 2023] and also the principle laid down
by this Court in Shuaib A.S v. State of Kerala
[2025 SCC Online 618], within two weeks from the
date of receipt of the application.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM
