Kerala High Court

Noufal vs State Of Kerala on 19 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                 2025:KER:13972

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946

                  BAIL APPL. NO. 10453 OF 2024

  CRIME NO.168/2023 OF ALUVA EAST POLICE STATION, Ernakulam

        AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.8391

OF 2024 OF HIGH COURT OF KERALA

PETITIONER/S:

           NOUFAL
           AGED 38 YEARS
           S/O. LATHEEF, KANJIRATHINGAL HOUSE, MANAKKAPADY,
           ASHOKAPURAM, CHOORNIKKARA VILLAGE, ERNAKULAM
           DISTRICT, PIN - 683106


           BY ADVS.
           P.MOHAMED SABAH
           LIBIN STANLEY
           SAIPOOJA
           SADIK ISMAYIL
           R.GAYATHRI
           M.MAHIN HAMZA
           BENSON AMBROSE
           ALWIN JOSEPH



RESPONDENT/S:

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

    2      THE STATION HOUSE OFFICER
           ALUVA EAST POLICE STATION, ERNAKULAM DISTRICT,
           PIN - 683101
                                                       2025:KER:13972
BAIL APPL. NO.10453 OF 2024

                                   2
           BY ADV.
           HRITHWIK.C.S, SR PP


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.02.2025,    THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                  2025:KER:13972
BAIL APPL. NO.10453 OF 2024

                                3


                  P.V.KUNHIKRISHNAN, J
                 --------------------------------
                   B.A.No.10453 of 2024
                  -------------------------------
         Dated this the 19th day of February, 2025


                              ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.168/2023

of Aluva East Police Station, registered alleging offences

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

and Psychotropic Substances Act, 1985 (NDPS Act).

3. The prosecution case is that, on 14.02.2023,

the accused was found in possession of 52.09 grams of

methamphetamine.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. The counsel for the petitioner submitted that,

petitioner is in custody from 14.02.2023, Now, two years

lapsed. The counsel also relied in the judgment of the Apex 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

Court in Ankur Chaudhary v. State of Madhya Pradesh

[2024 Live Law (SC) 416] and Nitish Adhikary @ Bapan

v. The State of West Bengal [SLP to Appeal (Crl.)

No.5769 of 2022] and also 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

14.02.2023 and therefore the petitioner is entitled bail.

6. The Special Public Prosecutor seriously

opposed the Bail Application. The Special Public Prosecutor

submitted that the allegation against the petitioner is very

serious and the quantity of contraband seized is commercial

quantity.

7. 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 not supported the case of prosecution. On facts, we 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

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."

8. 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.

9. In Nitish Adhikary's case (supra) case 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:13972 BAIL APPL. NO.10453 OF 2024

10. 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 involved. But as per the decision cited by the Apex Court, it was observed that, failure to conclude the trial within a reasonable time 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

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 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 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

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 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 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

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)

11. Admittedly, in this case the quantity seized is

commercial quantity. The petitioner in this case is in custody

for more than 2 years. 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 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 2025:KER:13972 BAIL APPL. NO.10453 OF 2024

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 Kerala [2025 SCC Online 618], within

two weeks from the date of receipt of the

application.