Kerala High Court

Vishnu C M @ Vadival Vishnu vs State Of Kerala on 28 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                2025:KER:16814
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946

                   BAIL APPL. NO. 2567 OF 2025

  CRIME NO.1076/2022 OF Thodupuzha Police Station, Idukki

        PETITIONER/S:


            VISHNU C M @ VADIVAL VISHNU,
            AGED 30 YEARS
            S/O MANI, CHANGANAPARAMBIL HOUSE, EZHALOOR KARA,
            PLANTATION BHAGAM, KUMARAMANGALAM VILLAGE,
            IDUKKI., PIN - 685605

            BY ADV SHIRAS ALIYAR
RESPONDENT/S:

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

    2       CIRCLE INSPECTOR OF POLICE,
            THODUPUZHA POLICE STATION,THODUPUZHA,IDUKKI
            DISTRICT., PIN - 685584


OTHER PRESENT:

            ADV.SRI.NOUSHAD K.A-SR.PP


     THIS   BAIL   APPLICATION    HAVING   COME   UP   FOR   ADMISSION   ON
28.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                        2025:KER:16814
B.A.No.2567 of 2025
                                   2




                      P.V.KUNHIKRISHNAN, J.
                --------------------------------
                     B.A. No. 2567 of 2025
               ---------------------------------
            Dated this the 28th day of February, 2025


                               ORDER

This Bail Application is filed under Section

483 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 1st accused in Crime

No.1076 of 2022 of Thodupuzha Police Station. The

above case is registered alleging offences

punishable under Section 20(b)(ii)(c), 29 and 31 of

NDPS Act, 1985. Petitioner was arrested on

27.07.2022 and he is in custody.

3. The prosecution case is that the 2nd

accused handed over 34.600 Kg of Ganja to the 1 st

accused on 27.07.2022 and the detecting officer and

party found the 1st accused with 34.600 Kg of ganja 2025:KER:16814

kept in three plastic bags for sale. Hence, it is

alleged that the accused committed the offence.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. The counsel for the petitioner submitted

that the petitioner is in custody from 27.07.2022.

The counsel submitted that he is in custody for

more than two years. The counsel submitted that the

petitioner is ready to abide any conditions imposed

by this Court, if this Court grant him bail.

6. The public prosecutor opposed the bail

application and submitted that he has criminal

antecedents including NDPS case.

7. The counsel appearing for the petitioner

raised a short point. The counsel relied on the

judgment of the Apex Court in Ankur Chaudhary v.

State of Madhya Pradesh [2024 Live Law (SC) 416] 2025:KER:16814

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 27.07.2022 and therefore the

petitioner is entitled bail.

8. The Public Prosecutor seriously opposed the

Bail Application. The Public Prosecutor submitted

that the allegation against the petitioner is very

serious and the quantity of contraband seized is

commercial quantity.

9. This Court considered the contentions of

the petitioner and the Public Prosecutor. In Ankur 2025:KER:16814

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."

2025:KER:16814

10. 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.

11. 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."

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

[2025 SCC Online 618] this Court observed like

this:-

2025:KER:16814

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 2025:KER:16814

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 2025:KER:16814

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 2025:KER:16814

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 2025:KER:16814

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, 2025:KER:16814

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 2025:KER:16814

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 2025:KER:16814

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)

13. Admittedly, in this case the quantity

seized is commercial quantity. The petitioner in

this case is in custody for more than 20 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 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 2025:KER:16814

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 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 2025:KER:16814

Shuaib A.S v. State of Kerala [2025 SCC

Online 618], within two weeks from the

date of receipt of the application.