Kerala High Court

Muhammed Salash vs State Of Kerala on 10 April, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                     2025:KER:31110
BAIL APPL. NO. 5150 OF 2025

                                  1


         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947

                    BAIL APPL. NO. 5150 OF 2025

   CRIME NO.1404/2023 OF Kundara Police Station, Kollam

     AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.522

OF 2025 OF HIGH COURT OF KERALA

PETITIONER/5TH ACCUSED:

         MUHAMMED SALASH
         AGED 23 YEARS
         S/O SALIM, PALLIVADAKKATHIL VEEDU,
         CHATHINAMKULAM, CHANDANATHOPE P.O, PERINAD
         VILLAGE, KOLLAM, PIN - 690523

         BY ADV T.T.RAKESH

RESPONDENT/RESPONDENT:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA, ERNAKULAM, PIN - 682031

         SRI NOUSHAD KA, SR PP


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.04.2025,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                        2025:KER:31110
BAIL APPL. NO. 5150 OF 2025

                                   2




                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                       B.A. No.5150 of 2025
              ----------------------------------------------
             Dated this the 10th day of April, 2025

                                ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime

No.1404/2023 of Kundara Police Station. The above case is

registered against the petitioner alleging offences punishable

under Sections 8, 22(c) and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short, the NDPS Act).

3. The prosecution case is that, on 14/07/2023 at

around 10:50 AM, a total of 85.250 grams of MDMA was

recovered, which includes 63.400 grams allegedly concealed in

a vehicle bearing Registration No. KL02/AD0004. Apart from

this, individual quantities were reportedly attributed to the

accused as follows: A1 with 4.680 grams, A2 with 4.660 grams,

A3 with 3.170 grams, A4 with 4.670 grams, and A5 with 4.670 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

grams of MDMA.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. The counsel appearing for the petitioner raised a

short point. 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 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 14.07.2023, and therefore the

petitioner is entitled bail. The Public Prosecutor seriously

opposed the Bail Application.

6. 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 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

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

2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

9. This Court in Shuaib A.S v. State of Kerala [2025

SCC Online 618] this Court 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 to the accused persons where commercial quantity of contraband was 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

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 cases where 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

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 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

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)

10. Admittedly, in this case the quantity seized is

commercial quantity. The petitioner in this case is in custody

from 14.07.2023. 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 principle laid 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

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 two 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.) No.3221 of

2023] and also the principle laid down by

this Court in Shuaib A.S v. State of 2025:KER:31110 BAIL APPL. NO. 5150 OF 2025

Kerala [2025 SCC Online 618], within two

weeks from the date of receipt of the

application.