Kerala High Court
Ebin vs State Of Kerala on 28 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.7947 of 2024
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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. 7947 OF 2024
CRIME NO.16/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC
SPECIAL SQUAD, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.3082
OF 2024 OF HIGH COURT OF KERALA
PETITIONER(S)/ACCUSED NO.2:
EBIN,
AGED 27 YEARS
S/O EUGINE, JUDGE COTTAGE,VANDAZHA NINNA
VEEDU,PUTHIYATHURA P.O.NEYYATTINKARA,
THIRUVANANTHAPURAM,, PIN - 695526
BY ADVS.
FRANCIS ASSISI
AJEESH S.BRITE
AMRUTHA P S
MANJU LUCKOSE
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY 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:
B.A.No.7947 of 2024
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P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.7947 of 2024
-------------------------------
Dated this the 28th day of February, 2025
ORDER
This Bail Application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is an accused in Crime No.16/2023 of
Excise Enforcement and Anti Narcotic Special Squad,
Thiruvananthapuram. The above case is registered against the
petitioner alleging offences punishable under Sections 22(c), 25
and 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short 'NDPS Act').
3. The prosecution case is that, on 9.6.2023, the
first accused was found in possession of 89.06 gms of
Methamphetamine. During the interrogation, he confessed that
some contraband was stored in his car. Accordingly, in the
subsequent search in the car, 161.88 gms of Methamphetamine
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was seized. Thus, a total quantity of 250.94 gms of
Methamphetamine was seized from the first accused. During the
interrogation of the first accused, he revealed that he had given
5.58 grms of Methamphetamine to the second accused, who is
the petitioner herein. Accordingly, the petitioner was arrested on
21.06.2023.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
5. The counsel appearing for the petitioner raised a
short point. The counsel relied on the judgments of the Apex
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 21.06.2023. The counsel submitted
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that, no seizure is effected from the petitioner. The counsel also
submitted that the petitioner is ready to abide any conditions if
this Court grant him bail.
6. 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.
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 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
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considered a case in which the accused were in custody for one
year and four months. In that case also the contraband seized
was commercial quantity. Even then the Apex Court granted bail.
9. 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."
10. 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
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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 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
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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 that the prosecution failed to incorporate all
the necessary witnesses in the report and after
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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)
11. Admittedly, the petitioner is in custody for one year
and eight months. The trial in the case is not started even now.
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In such circumstances, the rigour under Section 37 of the NDPS
Act can be relaxed. In the light of the above decisions and also
considering the detention period, I think the petitioner can be
released on bail after imposing stringent conditions.
Considering the peculiar facts and circumstances of this
case, this Bail Application is allowed with the following directions:
1. Petitioner shall be released on bail on executing a
bond for Rs.1,00,000/- (Rupees One Lakh only)
with two solvent sureties each for the like sum to
the satisfaction of the jurisdictional Court.
2. The petitioner shall appear before the
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
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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 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
DM
