Kerala High Court
Shyam P.S vs State Of Kerala on 3 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:17534
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. 2677 OF 2025
CRIME NO.907/2023 OF ANGAMALI POLICE STATION, ERNAKULAM
AGAINST THE ORDER DATED 23.02.2024 IN Bail Appl. NO.152 OF
2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.2 (IN CUSTODY FROM 07.09.2023):
SHYAM P.S
AGED 28 YEARS, S/O. SASI, FORMERLY RESIDING AT
PALLIYANA VEEDU, CHELAMATTOM KARA, CHELAMATTOM
VILLAGE, NOW RESIDING AT PALLIYANA VEEDU, NEAR
NSS KARAYOGAM, KURUMBASSERY KARA, KOOVAPPADI
P.O.,
ERNAKULAM DISTRICT, PIN - 683 544.
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
M.MAHIN HAMZA
R.GAYATHRI
ALWIN JOSEPH
BENSON AMBROSE
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682 031.
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B.A No.2677 of 2025
2
2 THE STATION HOUSE OFFICER
ANGAMALY EAST POLICE STATION, ANGAMALY P.O,
ERNAKULAM DISTRICT, PIN - 683 572.
BY ADV
NOUSHAD K.A, SR.PP
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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B.A No.2677 of 2025
3
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.2677 of 2025
-------------------------------
Dated this the 3rd day of March, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the 2nd accused in Crime
No.907 of 2023 of Angamali Police Station, Ernakulam. The
above case is registered against the petitioner and another
alleging offences punishable under Sections 8, 22(c) and 29
of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short 'NDPS Act'). The petitioner was arrested on
07.09.2023.
3. The prosecution case is that on 07.09.2023 at
about 00:15 hours, the accused Nos.1 and 2 were found in
possession of 147 grams of MDMA, which was kept beneath
the music system of a motor car. Hence it is alleged that the
accused committed the offence.
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4. Heard counsel for the petitioner and the Public
Prosecutor .
5. Counsel for the petitioner submitted that, the
petitioner is in custody from 07.09.2023. Now, one year and
six months lapsed. The counsel also relied in the judgment
of 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] 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 07.09.2023 and
therefore the petitioner is entitled bail.
6. Public Prosecutor seriously opposed the Bail
Application. The Public Prosecutor submitted that the
allegation against the petitioner is very serious and the
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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 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.
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9. 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."
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
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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 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
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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
having examined all the witnesses already cited,
the prosecution filed a petition under Section
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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, in this case the quantity seized is
commercial quantity. The petitioner in this case is in
custody for about one year and six months. In such
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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
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
2025:KER:17534
(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
AMR
