Kerala High Court

Indrajith. S. Kumar vs State Of Kerala on 24 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

 BAIL APPL. NO.10988 OF 2024    1


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           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946

                  BAIL APPL. NO. 10988 OF 2024

CRIME NO.6/2023 OF NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM

         AGAINST THE ORDER/JUDGMENT IN Bail Appl. NO.11381

 OF 2023 OF HIGH COURT OF KERALA

 PETITIONER(S)/ACCUSED NO.3:

            INDRAJITH. S. KUMAR,
            AGED 25 YEARS, S/O. SREEKUMAR, SREELATHA NIVAS,
            KOLLAM P.O, KOYILANDI, MUDADI, KOZHIKODE,
            PIN - 673 307

            BY ADVS.
            RENJITH B.MARAR
            LAKSHMI.N.KAIMAL
            P.RAJKUMAR
            KESHAVRAJ NAIR
            BIJU VIGNESWAR
            ARUN POOMULLI
            ABHIJITH SREEKUMAR
            ABHIRAM.S.
            GAADHA SURESH
            JITHY PRADEEP
            AKHILA RADHAKRISHNAN
            T.K.BABU
 RESPONDENT(S)/STATE & COMPLAINANT:

     1      STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682 031
     2      INTELLIGENCE OFFICER,
            NARCOTIC CONTROL BUREAU, COCHIN ZONAL UNIT-
            ERNAKULAM, PIN - 682 037
 BAIL APPL. NO.10988 OF 2024   2


                                          2025:KER:15830

           BY ADV.
           SRI. R.VINU RAJ, SPL.PP


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 BAIL APPL. NO.10988 OF 2024       3


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                P.V.KUNHIKRISHNAN, J
              ------------------------------------
                 B.A.No.10988 of 2024
              ------------------------------------
       Dated this the 24th day of February, 2025


                               ORDER

The petitioner is an accused in O.R. No.06 of 2023

of the Narcotic Control Bureau (NCB), Cochin Unit, which is

now pending as S.C. No.1939/2023 on the file of Additional

Sessions Judge-I, Ernakulam. Above case is registered

against the petitioner and others alleging offence

punishable under Sections 22(c), 28 and 29 of the Narcotic

Drugs and Psychotropic Substances (NDPS) Act, 1985.

2. The prosecution case is that, on 21.06.2023 at

about 02.15 PM, the Narcotic Control Bureau received an

information about four suspicious parcels from Ernakulam

Head Post Office, which was found to contain 2.23 grams of

L.S.D. blots. The petitioner was summoned in connection

with the 3rd parcel which allegedly contained 550

milligrams of LSD. Hence, it is alleged that the accused

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committed the offence. The petitioner was arrested on

23.06.2023.

3. Heard the learned counsel appearing for the

petitioner and the learned Prosecutor.

4. The counsel for the petitioner submitted that

the petitioner is in custody from 23.06.2023. The counsel

also submitted that this Court already disposed of the case

of the co-accused in which this Court directed to consider

the bail application 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]. The counsel also

relied on the judgments of the Apex Court in Nitish

Adhikary @ Bapan v. The State of West Bengal [SLP

to Appeal (Crl.) No.5769 of 2022] and 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 23.06.2023 and therefore

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the petitioner is entitled bail.

5. The Public Prosecutor opposed the bail

application. Public Prosecutor submitted that the quantity

of contraband seized from the petitioner is commercial

quantity and hence Section 37 of the NDPS Act is

attracted.

6. 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 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."

7. In Hasanujjaman's case (supra), the

Apex Court considered a case in which the accused were in

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custody for one year and four months. In that case also

the contraband seized is commercial quantity. Even then

the Apex Court granted bail.

8. In Nitish Adhikary's case (supra), 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."

9. This Court in Shuaib A.S v. State of Kerala

[2025 SCC Online 618], 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

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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 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

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`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.

11. In the instant case, it is emphatically clear

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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 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)

10. Admittedly, in this case the quantity of

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contraband seized is commercial quantity. The petitioner

in this case is in custody from 23.06.2023. 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 principles 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

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 principles laid down by the

Apex Court in Ankur Chaudhary's case

(supra), Nitish Adhikary's case (supra),

Hasanujjaman's case (supra) and also

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the principle laid down by this Court in

Shuaib's case (supra), within two weeks

from the date of receipt of the application.