Kerala High Court

Robin Thomas vs State Of Kerala on 3 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                           2025:KER:8263
        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946

               BAIL APPL. NO. 314 OF 2025

  CRIME NO.398/2023 OF KORATY POLICE STATION, THRISSUR

AGAINST THE ORDER DATED 29.02.2024 IN BAIL APPL. NO.7831

             OF 2023 OF HIGH COURT OF KERALA

PETITIONER/ACCUSED NO.1:

         ROBIN THOMAS
         AGED 29 YEARS, S/O.THOMAS, KURIYASSERY HOUSE,
         BNRA HOUSE NO.39, PARAKULAM ROAD DESOM,
         ANGAMALY, ERNAKULAM DISTRICT., PIN - 683 572.

         BY ADV
         VIVEK VENUGOPAL


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM, KOCHI.,
         PIN - 682 031.

         BY ADV
         G.SUDHEER, PUBLIC PROSECUTOR


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                    2025:KER:8263
B.A No.314 of 2025
                                 2
                P.V.KUNHIKRISHNAN, J
                --------------------------------
                   B.A.No.314 of 2025
                 -------------------------------
        Dated this the 3rd day of February, 2025


                             ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 1st accused in S.C. No.943

of 2023 on the file of the Additional District and Sessions

Court-III, Thrissur, which arises from Crime No.398 of

2023 of Koratty Police Station, Thrissur. The above case is

registered against the petitioner and another 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 on

19.04.2023 at 6:45 p.m., accused No. 1 and 2, were

found in possession of 0.11 grams of LSD. It is alleged 2025:KER:8263

that 0.06 grams of LSD was seized from the 1 st accused

and 0.05 grams of LSD was seized for the 2 nd accused.

The petitioner was arrested on 20.04.2023.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. Counsel for the petitioner submitted that

the petitioner is in custody from 20.04.2023. The counsel

submitted the petitioner is in custody for about 1 year

and 10 months. The counsel submitted that indefinite

incarceration of the petitioner is not necessary. The

counsel for the petitioner also relied on the order passed

by the Hon'ble Apex Court in Ankur Chaudhary v.

State of Madhya Pradehsh [2024 ICO 2884].

6. Public Prosecutor opposed the bail

application. The Public Prosecutor submitted that the

allegation against the petitioner is serious and they were

found in possession of commercial quantity of LSD.

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7. When this bail application came up for

consideration. This court directed the registry to get a

report from the Trial Court about the time required to

dispose the case. The Trial Court submitted a report. It

will be better to extract the same.

Referring to the above I may humbly submit the following report for kind consideration.

The prosecution case is that the accused are alleged to have committed offence punishable u/s. u/ss.22(c) and 29 of the NDPS Act, 1985.

The trial of several NDPS cases and custody cases are going on as per the direction of the Hon'ble High Court of Kerala. So far charge was not framed against the accused in this case.

In this court several civil cases since the year 1999 and Sessions cases since the year 2010 are pending. Altogether there are more than one thousand 5+ year old cases. The total pendency of this court is more than 4000.

This court has been notified as Special Courts under KPIDFE Act, BUDS Act, RPD Act and RFCTLARR Act cases. In addition to the 2025:KER:8263

above, this court is functioning as Additional MACT also.

As per the direction of the Hon'ble High Court, I am focusing on disposal of old cases. Taking into account of the pendency of the case and number of time bound cases pending before this court I find that it will take not less than one year to dispose this case.

Thus the report is being submitted before the Hon'ble High Court of Kerala for kind consideration and further direction in this regard.

8. From the above, it is clear that the case

can be disposed only within one year. The Hon'ble Apex

Court in Ankur Chaudhary (supra) observed like this:-

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.

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9. The Hon'ble Apex Court observed that

the failure to conclude the trial within a reasonable time

resulting in prolonged incarceration of under trial

prisoners, will violated fundamental right guaranteed

under Article 21 of the Constitution of India and in such

circumstances, statutory embargo under Section 37 of

the NDPS Act can be relaxed. Moreover, this Court also

considered in Shuaib.A.S v. State of Kerala, the same

is extracted:

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 2025:KER:8263

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 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.

2025:KER:8263

10. In the light of the above principle, I am of

the considered opinion that the petitioner can be released

on bail in this case. Admittedly, the petitioner is in

custody for about 1 year and 10 months. As per the

report of the Trial Court, it will take one year more for

completing the trial. In such circumstances, I am of the

considered opinion that, in the facts and circumstances of

the case, the embargo under Section 37 can be relaxed.

11. Moreover, it is a well accepted principle

that the bail is the rule and the jail is the exception. The

Hon'ble Supreme Court in Chidambaram. P v

Directorate of Enforcement [2019 (16) SCALE 870],

after considering all the earlier judgments, observed that,

the basic jurisprudence relating to bail remains the same

inasmuch as the grant of bail is the rule and refusal is the

exception so as to ensure that the accused has the

opportunity of securing fair trial.

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12. Moreover, in Jalaluddin Khan v. Union

of India [2024 KHC 6431], the Hon'ble Supreme Court

observed that:

"21. Before we part with the Judgment,

we must mention here that the Special

Court and the High Court did not

consider the material in the charge

sheet objectively. Perhaps the focus

was more on the activities of PFI, and

therefore, the appellant's case could

not be properly appreciated. When a

case is made out for a grant of bail, the

Courts should not have any hesitation

in granting bail. The allegations of the

prosecution may be very serious. But,

the duty of the Courts is to consider

the case for grant of bail in accordance

with the law. "Bail is the rule and jail is

an exception" is a settled law. Even in

a case like the present case where 2025:KER:8263

there are stringent conditions for the

grant of bail in the relevant statutes,

the same rule holds good with only

modification that the bail can be

granted if the conditions in the statute

are satisfied. The rule also means that

once a case is made out for the grant

of bail, the Court cannot decline to

grant bail. If the Courts start denying

bail in deserving cases, it will be a

violation of the rights guaranteed

under Art.21 of our Constitution."

(underline supplied)

13. In Manish Sisodia v. Directorate of

Enforcement [2024 KHC 6426], also the Hon'ble

Supreme Court observed that:

"53. The Court further observed that,

over a period of time, the trial courts

and the High Courts have forgotten a 2025:KER:8263

very well - settled principle of law that

bail is not to be withheld as a

punishment. From our experience, we

can say that it appears that the trial

courts and the High Courts attempt to

play safe in matters of grant of bail. The

principle that bail is a rule and refusal is

an exception is, at times, followed in

breach. On account of non - grant of bail

even in straight forward open and shut

cases, this Court is flooded with huge

number of bail petitions thereby adding

to the huge pendency. It is high time

that the trial courts and the High Courts

should recognize the principle that "bail

is rule and jail is exception".