Kerala High Court

Mohammed Asif K vs State Of Kerala on 5 February, 2025

Author: C.S.Dias

Bench: C.S.Dias

                                                   2025:KER:9122
BAIL APPL. NO. 6070 OF 2024

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          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. 6070 OF 2024

    CRIME NO.455/2023 OF SHORNUR POLICE STATION, PALAKKAD

      AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.1527 OF

2024 OF HIGH COURT OF KERALA


PETITIONER:

          MOHAMMED ASIF K.,
          AGED 27 YEARS
          S/O. KASIM, BAICHANALLY, KODAGU, KARNATAKA STATE,
          PIN - 571234


          BY ADV NIREESH MATHEW


RESPONDENT:

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

          PP SRI. AJITH VISWANATH



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.02.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                    2025:KER:9122
BAIL APPL. NO. 6070 OF 2024

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           Dated this the 5th day of February, 2025

                            ORDER

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

BNSS), by the first accused in Crime No.455/2023 of

the Shornur Police Station, Palakkad, which is

registered against two accused persons, for allegedly

committing the offences punishable under Sections

22(c) and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 ('Act', in short). The petitioner

was arrested on 14.7.2023.

2. The prosecution case, in brief, is that: on

14.7.2023, at around 11:20 hours, the first accused was

found in conscious possession of 98.87 grams of MDMA.

He was arrested on the spot with the contraband

article. During the course of investigation and in the

interrogation of the first accused, he confessed that the 2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

contraband was purchased from Bangalore by the

second accused and given to him. Thus, the accused

have committed the above offences.

3. Heard; Sri.Nireesh Mathew, the learned

Counsel appearing for the petitioner and Sri.Ajith

Viswanath, the learned Public Prosecutor.

4. The learned Counsel for the petitioner

submitted that notwithstanding the other contentions

raised in the bail application, the petitioner has been in

judicial custody for the last one year and seven months.

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

Therefore, the petitioner is 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 2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

the case has not commenced, the accused is entitled to

be enlarged on bail. The petitioner is entitled to the

benefit of the said order. Therefore, the application

may be allowed.

5. The learned Public Prosecutor seriously

opposed the application. He 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 application may

be dismissed.

6. The prosecution case is that the first accused

was found in conscious possession of 98.87 gms of

MDMA which was allegedly supplied to him by the

petitioner. In the complaint now filed, it is alleged that

the first accused had transferred an amount of Rs.

40,000/- to the bank account of CW22, which was

operated by the petitioner, and it is with the said

money the petitioner purchased the contraband article.

2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

It is on the basis of the said allegation that the

petitioner has been implicated as an accused.

7. When the application came up for

consideration on 15.01.2025, this Court had called for a

report from the Court of the Additional Sessions Judge-

V, Palakkad, to ascertain the status and the reasonable

time period required to dispose of S.C. No.26/2024,

which arises out of the present crime.

8. In compliance with the said order, the

learned Sessions Judge-V, by communication dated

27.01.2025, has informed this Court that the case

stands posted to 01.02.2025 for hearing on charges.

The Trial Court requires at least six months time from

the date of framing charges to complete the Trial.

9. 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 2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

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. Accordingly, the Hon'ble Supreme Court

enlarged the petitioner in the said case on bail.

10. 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."

On an overall consideration of the facts, the rival

submissions made across the Bar, and the materials

placed on record, and the law laid down by the

Honourable Supreme Court in the afore-cited decision

and further taking into consideration that the petitioner 2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

has been in judicial custody for the last one year and

seven months and the trial in the case has not

commenced, I am of the view that the petitioner is

entitled to be enlarged on bail in the peculiar facts and

circumstances of this case.

In the result, the application is allowed, by

directing the petitioner to be released on bail on him

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

only) with two solvent sureties each for the like sum, to

the satisfaction of the court having jurisdiction, which

shall be subject to the following conditions:

(i) The petitioner shall appear before the Trial

Court as and when directed;

(ii) The petitioner 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 2025:KER:9122 BAIL APPL. NO. 6070 OF 2024

manner, whatsoever;

(iii) The petitioner shall not commit any

offence while he is on bail;

(iv) The petitioner shall surrender his

passport, if any, before the jurisdictional court at the

time of execution of the bond. If he has no passport, he

shall file an affidavit to the effect before the said 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.