Kerala High Court
Afsal K.A vs State Of Kerala on 3 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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BAIL APPL. NO. 7420 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
BAIL APPL. NO. 7420 OF 2024
CRIME NO.1959/2023 OF ALUVA EAST POLICE STATION, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl.
NO.3335 OF 2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.1:
AFSAL K.A,
AGED 26 YEARS
S/O ABDUL ASEES, MOOPUKANDATHIL HOUSE,
KALLUNGAPARAMBU BHAGAM, KUNNATHERY, CHOORNIKKARA
VILLAGE, ALUVA, ERNAKULAM DISTRICT, PIN - 683101
BY ADVS.
K.MOHAMMED RAFEEQ
BIBIN MATHEW
P.M.MATHEW
AMARNATH R LAL
SANALDEV E.P.
VISHNUMAYA ANANDAN
SONYMON ANTONY
AJMAL V. KARIM
AKHIL KRISHNAN A.
RESPONDENT/STATE AND COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
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BAIL APPL. NO. 7420 OF 2024
2
2 STATION HOUSE OFFICER,
ALUVA EAST POLICE STATION,
ERNAKULAM DISTRICT, PIN - 683101
OTHER PRESENT:
SR.PP- NOUSHAD K A
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO. 7420 OF 2024
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A. No.7420 of 2024
----------------------------------------------
Dated this the 03rd day of March, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime
No.1959/2023 of Aluva East Police Station. The above case is
registered against the petitioner alleging offences punishable
under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, the NDPS Act).
3. The prosecution case is that, the accused was
found in possession of f 59.710 grams of MDMA. Subsequently it
was found that the same is Methamphetamine. The petitioner
was arrested on 03.12.2023.
4. Heard counsel for the petitioner and the Public
Prosecutor.
5. The counsel appearing for the petitioner raised a
short point. The counsel relied on the judgments of the Apex
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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 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 03.12.2023, and therefore the
petitioner is entitled bail. The Public Prosecutor seriously
opposed the Bail Application.
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,
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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 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] 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,
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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 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
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BAIL APPL. NO. 7420 OF 2024
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
addressed so as to protect liberty of an
individual embodied under Article 21 of the
Constitution, which overrides the embargo
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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 anything which would
stand in the way of trial even on remote
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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 seized is
commercial quantity. The petitioner in this case is in custody
from 03.12.2023. 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 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 within two
weeks raising all the contentions raised in this
bail application.
2. If such a bail application is received, the
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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.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
jv
