Kerala High Court
Aneesh vs State Of Kerala on 27 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:16431
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025/8TH PHALGUNA, 1946
BAIL APPL. NO. 2187 OF 2025
CRIME NO.880/2022 OF VENJARAMOODU POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.12:
ANEESH,
AGED 33 YEARS, S/O KUTTAPPAN, RESIDING AT ANEESH
BHAVAN, POTTAYIL VEEDU, EDAVACKODE, SREEKARYAM,
ULLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT,
PIN - 695 011.
BY ADVS.
J.R.PREM NAVAZ
PREETHA RANI M.S.
SUMEEN S.
MUHAMMED SWADIQ
M.R.ALPHY GEORGE
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682 031.
BY ADV
NOUSHAD K.A, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
27.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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B.A No.2187 of 2025
2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.2187 of 2025
-------------------------------
Dated this the 27th day of February, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the 12th accused in Crime
No.880 of 2022 of Venjarammoodu Police Station,
Thiruvananthapuram. The above case is registered against
the petitioner and others alleging offences punishable under
Section 20(b)(ii)(c) of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (for short 'NDPS Act'). Subsequently,
Charge Sheet was filed alleging offences punishable under
Sections 20(b)(ii)(c) read with Section 8(c), 25, 27A, 29 and
30 of the NDPS Act.
3. The prosecution case is that on 15.07.2022,
based on information received, an inspection was
conducted in the house of the 1 st accused and recovered
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200.6 Kgs of ganja in 33 packets and an amount of
Rs.51,000/-. On the basis of the information furnished by
the 1st accused, the accused Nos.2 to 4 were arrested. Later
during the course of investigation, the involvement of the
petitioner was also revealed and accordingly he was
implicated as the accused Nos.12. The allegations against
the petitioner is that he has got frequent contacts with the
accused Nos.2, 4 to 7, 9 to 11 and 14, on the date of
incident to facilitate to transport of the contraband. He also
provided the shelter for hiding the other accused. Hence, it
is alleged that the accused also committed the offence. The
petitioner was arrested on 05.01.2024.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. Counsel appearing for the petitioner
submitted that the petitioner is in custody from 05.01.2024.
He is in custody for almost one year and two months. The
counsel submitted that the other accused were already
released on bail. Therefore, the petitioner also may be
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released on bail, even though the allegation is that the
contraband seized is commercial quantity. The counsel
relied on the judgment of the Hon'ble 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] and
also Hasanujjaman and others v. The State of West
Bengal [SLP to Appeal (Crl.) No.3221 of 2023].
6. Public Prosecutor opposed the bail
application. The Public Prosecutor submitted that the other
accused were released on bail because the Charge Sheet
was not filed in time and they were released on statutory
bail.
7. This Court considered the contentions of the
petitioner and the Public Prosecutor. In Ankur
Chaudhary's case (Supra) the Hon'ble 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
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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
Hon'ble 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 Hon'ble Apex Court granted bail.
9. In Nitish Adhikary's case (supra) case the
Hon'ble 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."
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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
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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 `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,
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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
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
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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)
11. Admittedly, in this case the quantity seized is
commercial quantity. The petitioner in this case is in
custody for almost one year and two months. 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
Hon'ble Apex Court and this Court in the above judgments.
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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 principle laid down by the
Hon'ble 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.
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State of Kerala [2025 SCC Online 618],
within two weeks from the date of receipt of
the application.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
AMR
2025:KER:16431
APPENDIX OF BAIL APPL. 2187/2025
PETITIONER'S ANNEXURES
Annexure A1 THE TRUE COPY OF THE FINAL
REPORT/CHARGE SHEET IN CRIME NO.
880/2022 OF VENJARAMMOODU POLICE
STATION, THIRUVANANTHAPURAM DISTRICT.
Annexure A2 THE TRUE COPY OF THE ORDER DATED
03.02.2025 IN CRL.M.P. NO: 308 OF 2025,
PASSED BY THE COURT OF ADL: SESSIONS
JUDGE- I THIRUVANANTHAPURAM.
Annexure A3 THE TRUE COPY OF THE COMMON ORDER DATED
31.07.2024 PASSED BY THIS HON'BLE COURT
IN BA 3371/2024.
