Shinu vs State Of Kerala
2025 Latest Caselaw 4088 Ker

Kerala High Court

Shinu vs State Of Kerala on 14 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

BAIL APPL. NO. 1964 OF 2025              1




                                                 2025:KER:12491
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946

                       BAIL APPL. NO. 1964 OF 2025

     CRIME NO.398/2023 OF Koraty Police Station, Thrissur

       AGAINST      THE       ORDER/JUDGMENT   DATED      IN   Bail    Appl.

NO.5348 OF 2024 OF HIGH COURT OF KERALA

PETITIONER/S:

            SHINU
            AGED 27 YEARS
            S/O.BABU, PARAKKA HOUSE, ANGADIKADAVU DESOM,
            ANGAMALI VILLAGE, ERNAKULAM DISTRICT., PIN -
            683572

            BY ADV VIVEK VENUGOPAL
RESPONDENT/S:
          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
          KERALA, ERNAKULAM, KOCHI., PIN - 682031

            SRI.G.SUDHEER PP


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
14.02.2025,      THE    COURT     ON   THE   SAME   DAY    DELIVERED    THE
FOLLOWING:
 BAIL APPL. NO. 1964 OF 2025         2




                                                 2025:KER:12491


                 P.V.KUNHIKRISHNAN, J
               --------------------------------------
                   B.A. No. 1964 of 2025
               --------------------------------------
         Dated this the 14th day of February, 2025



                              ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 2nd accused in Sessions

Case No. 943/2023 on the file of the Addl. District and

Sessions Court-III, Thrissur which arises from Crime No.

398/2024 of Koratty Police Station. 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 19.04.2022

at 6.45 pm, the accused Nos. 1 and 2, were found in

2025:KER:12491 possession of 0.11 grams of LSD. It is alleged that 0.06

grams of LSD was seized from the 1st 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. The counsel for the petitioner submitted

that 1st accused is released on bail as per Annexure-3 order.

The counsel submitted that the same principle is applicable

to the petitioner also. The Public Prosecutor opposed the

bail application. The Public Prosecutor submitted that the

petitioner has got criminal antecedents. But, the counsel

for the petitioner submitted that the 1 st accused was also

having criminal antecedents and even then, this Court

granted bail.

6. This Court considered the contentions of

the petitioner and the Public Prosecutor. It will be better to

extract the relevant portion of Annexure-3 order.

2025:KER:12491 "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 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.

2025:KER:12491

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.

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

2025:KER:12491 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 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

2025:KER:12491 the Constitution of India.

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."

I think the same principle is applicable in the

present case also. I am forced to grant bail in this case also.

Therefore, this bail application is allowed in the following

manner :

1. Petitioner shall be released on bail on

executing a bond for Rs.50,000/- (Rupees Fifty

Thousand only) with two solvent sureties each

for the like sum to the satisfaction of the

jurisdictional Court.

2. The petitioner shall appear before the

2025:KER:12491 Investigating Officer for interrogation as and

when required. The petitioner shall co-operate

with the investigation and shall not, directly

or indirectly make any inducement, threat or

promise 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.

3. Petitioner shall not leave India

without permission of the jurisdictional Court.

4. Petitioner shall not commit an offence

similar to the offence of which he is accused,

or suspected, of the commission of which he is

suspected.

5. If any of the above conditions are

violated by the petitioner, the jurisdictional

Court can cancel the bail in accordance to

law, even though the bail is granted by this

2025:KER:12491 Court. The prosecution and the victim are at

liberty to approach the jurisdictional court to

cancel the bail, if there is any violation of the

above conditions.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS