Kerala High Court

Shibu. J vs State Of Kerala on 5 February, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                    2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                               1
           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

 WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946

                  BAIL APPL. NO. 11181 OF 2024

  CRIME NO.19/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC

    SPECIAL SQUAD, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM

        AGAINST THE ORDER/JUDGMENT DATED IN SC NO.42 OF 2024 OF

III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM

PETITIONER:

            CARLOUIS ANANDHAN,
            AGED 35 YEARS
            S/O ANANDHAN, T.C 81/304, THAIVILAKAM HOUSE,
            VALIYA VELI, POUND KADAVU WARD, ATTIPRA VILLAGE,
            THIRUVANANTHAPURAM, PIN - 695583


            BY ADV LATHEESH SEBASTIAN


RESPONDENTS:
    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, PIN - 682031

    2       EXECISE INSPECTOR-I,
            EXCISE ENFORCEMENT & NARCOTICS SPECIAL SQUAD,
            THIRUVANANTHAPURAM DISTRICT, PIN - 695023

            PP SMT. VIDYA KURIAKOSE



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
                                               2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                              2
05.02.2025, ALONG WITH Bail Appl..4308/2024, 7059/2024, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                    2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                              3

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

              THE HONOURABLE MR.JUSTICE C.S.DIAS

 WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946

                 BAIL APPL. NO. 4308 OF 2024

  CRIME NO.19/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC

    SPECIAL SQUAD, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM

     AGAINST THE ORDER/JUDGMENT DATED IN SC NO.42 OF 2024 OF

DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM

PETITIONER:

         SHIBU. J,
         AGED 20 YEARS
         S/O JOHN BOSCO, THAIVILAKAM, ALEENA NIVAS,
         VALIYAVELI DESOM,ATTIPRA VILLAGE,
         THIRUVANANTHAPURAM, PIN - 695583


         BY ADVS.
         RENJITH B.MARAR
         LAKSHMI.N.KAIMAL
         P.RAJKUMAR
         KESHAVRAJ NAIR
         ARUN POOMULLI
         PREETHA S CHANDRAN
         ABHIJITH SREEKUMAR
         ANAND REMESH
         ABHIRAM.S.
         C.R.REKHA
         GAADHA SURESH
         ANAGHA K. AYRIYIL
                                                 2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                              4
RESPONDENTS:

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

    2    THE EXCISE CIRCLE INSPECTOR,
         EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL
         SQUAD, THIRUVANANTHAPURAM, PIN - 695001

         PP SRI. AJITH VISWANATH



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.02.2025, ALONG WITH Bail Appl..11181/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                     2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                              5

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

 WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946

                  BAIL APPL. NO. 7059 OF 2024

  CRIME NO.19/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC

    SPECIAL SQUAD, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM

        AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.1388 OF

2024 OF II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM

PETITIONER:

           JOSHUA SIMON,
           AGED 24 YEARS
           S/O.SIMON, RESIDING AT J.S. NIVAS,NEAR
           POOTHUKURACHI POST OFFICE,AARTTUMUKKU DESOM,
           KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM, PIN -
           695303


           BY ADVS.
           PIRAPPANCODE V.S.SUDHIR
           MARY KUNJU JOHN
           AKASH S.
           GIRISH KUMAR M S
           SRIVIDYA K
           RICHU THERESA ROBERT
           RAJALAKSHMI.R.




RESPONDENTS:

    1      STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
                                                 2025:KER:9484
 B.A Nos. 11181, 4308 and 7059 of 2024
                              6
          KERALA, ERNAKULAM, PIN - 682031

    2    THE STATION HOUSE OFFICER,
         THIRUVANANTHAPURAM EXCISE ENFORCEMENT & ANTI
         NARCOTICS SPECIAL SQUAD, THIRUVANANTHAPURAM, PIN -
         695035



OTHER PRESENT:

          PP SRI AJITH VISWANATH


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.02.2025, ALONG WITH Bail Appl..11181/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                               2025:KER:9484
B.A Nos. 11181, 4308 and 7059 of 2024
                             7




         Dated this the 5th day of February, 2025

                  COMMON O R D E R

These applications are filed under Section 483 of

the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

BNSS) and Section 439 of the Code of Criminal

Procedure, by the accused 1, 2 and 4 in Crime

No.19/2023 of the Excise Enforcement and Anti

Narcotic Special Squad, Thiruvananthapuram, which is

registered against seven accused persons, for allegedly

committing the offences punishable under Sections 8(c),

22(c), 20(b)(ii)(C), 25, 27A and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 ('Act', in short).

The petitioners were arrested and remanded to judicial

custody on 9.7.2023. B A No.11181/2024 is filed by the

1st accused, B.A. No.7059/2024 is filed by the 2 nd accused 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

and B.A.No.4308/2024 is filed by the 4th respondent. As

these applications are filed by the accused in the same

crime, they are consolidated, jointly heard and disposed

of by this common order.

2. The essence of the prosecution case is

that: on 9.7.2023, at around 19 hours, the accused

persons had hatched a criminal conspiracy, and the

accused 1 to 4 were found in possession of 155.480 kg of

ganja and 70.71 grams of MDMA, for the purpose of sale,

which were seized from the motor car bearing No. KL

01-CY-2624 and the house bearing No. T.C. No.100/440-

1 of one Omanakuttan near Nehru Junction, Pallithura

Desom, Attipra Village. The contraband articles were

stored in contravention to the provisions of the NDPS

Act. The accused 1 to 4 were arrested with the

contraband articles and were taken to custody. The

investigation has revealed that the 6 th accused along with

the accused 5 and 7 are also involved in the conspiracy 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

and aided in the commission of the offences. Thus, the

accused have committed the above offences.

3. Heard; the learned Counsel appearing

for the petitioners and the learned Public Prosecutors.

4. The learned Counsel for the petitioners

submitted that notwithstanding the other contentions

raised in the bail applications, the petitioners have been

in judicial custody for the last one year and seven

months. However, the trial in the case has not been

commenced. Therefore, the petitioners are entitled to

the benefit of the law laid down by the Honourable

Supreme Court in Ankur Chaudhary v. State of Madhya

Pradesh[2024 KHC 8248] and Nitish Adhikary @ Bapan

v. The State of West Bengal [SLA (Crl.)No5769/2022],

wherein the Supreme Court has held that if the accused

is undergoing custody for one year and seven months

and the trial in the case has not commenced, the accused

is entitled to be enlarged on bail. The petitioners are 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

entitled to the benefit of the said orders. Therefore, the

applications may be allowed.

5. The learned Public Prosecutors seriously

opposed the applications. They submitted that since the

contraband involved in the case is of a commercial

quantity, the rigour under Section 37 of the Act applies

to the facts of the case. Therefore, the applications may

be dismissed.

6. In Ankur Chaudhary's case (supra), the Hon'ble

Supreme Court, on considering that the accused in the

said case was in judicial custody for nearly two years for

allegedly committing an offence under the NDPS Act and

that trial had not commenced, held that the prolonged

incarceration of an accused militates against the

accused's precious fundamental right guaranteed under

Article 21 of the Constitution of India. Therefore, the

conditional liberty overrides the statutory embargo

created under Section 37(1)(b) of the NDPS Act.

2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

Accordingly, the Hon'ble Supreme Court enlarged the

petitioner in the said case on bail.

7. Similarly, in Nitish Adhikary @ Bapan's case

(supra) has observed as follows:-

"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."

8. When the applications came up for

consideration on 15.01.2025, this Court had called

for a report from the Court of the Additional

Sessions Judge-I, Thiruvananthapuram, to ascertain

the status and the reasonable time period required

to dispose of S.C.No.42/2024, which arises out of

the present crime.

9. In compliance with the said order, the

learned Additional Sessions Judge-II, by

communication dated 01.02.2025, has informed this

Court that the several session cases before the 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

said court have been scheduled till 13.6.2025. In

the instant case, the attendance of the 8th accused

has not been secured. Therefore, the case has

been split up. There are 30 witnesses cited by the

prosecution. Considering the large pendency of the

cases, the Trial Court would require at least 8

months time from 13.6.2025 to dispose of S.C.

No.42/2024.

10. On an overall consideration of the facts, the

rival submissions made across the Bar, the materials

placed on record, the law laid down in the afore-cited

decisions, the report of the Trial Court and considering

that the petitioners have been in judicial custody for the

last one year and seven months and the trial in the case

has not commenced, I am satisfied that the petitioners

are entitled to be enlarged on bail.

In the result, the applications are allowed, by

directing the petitioners to be released on bail, on them 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

executing a bond for Rs.1,00,000/- (Rupees One lakh

only) each with two solvent sureties each for the like

sum, to the satisfaction of the jurisdictional court, which

shall be subject to the following conditions:

(i) The petitioners shall appear before the Trial

Court as and when directed;

(ii) The petitioners shall not directly or indirectly

make any inducement, threat or procure to any person

acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the court or to any

Police Officer or tamper with the evidence in any

manner, whatsoever;

(iii) The petitioners shall not commit any

offence while they are on bail;

(iv) The petitioners shall surrender their

passports, if any, before the jurisdictional court at the

time of execution of the bond. If they have no passport,

they shall file an affidavit to the effect before the said 2025:KER:9484 B.A Nos. 11181, 4308 and 7059 of 2024

court on the date of execution of the bond;

(v) In case of violation of any of the

conditions mentioned above, the jurisdictional court shall

be empowered to consider the application for

cancellation of bail, if any filed, and pass orders on the

same, in accordance with law.