Kerala High Court
Rahul Raj vs State Of Kerala on 3 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:17643
Bail Appl. Nos.8595 & 9292 OF 2024
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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. 8595 OF 2024
CRIME NO.28/2023 OF Trivandrum Excise Range Office
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl.
NO.2560 OF 2024 OF HIGH COURT OF KERALA
PETITIONER/ACCUSED NO.2:
RAHUL RAJ,
AGED 29 YEARS
S/O. RAJAN,AMBADI HOUSE, VETTIKONAM,
VATTIYOORKKAVU ,THIRUVANANTHAPURAM, PIN - 695013
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SRI G SUDHEER, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.03.2025, ALONG WITH Bail Appl..9292/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:17643
Bail Appl. Nos.8595 & 9292 OF 2024
2
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. 9292 OF 2024
CRIME NO.28/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC
SPECIAL SQUAD, THIRUVANANTHAPURAM, Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl.
NO.3139 OF 2024 OF HIGH COURT OF KERALA
PETITIONER/1ST ACCUSED:
SREEJITH.S.
AGED 31 YEARS
S/O SANKARANKUTTY NAIR, TRA-24, TC-1/2043,
THAMARABHAGAM, KUMATAPURAM, MEDICAL COLLEGE,
THIRUVANANTHAPURAM, PIN - 695011
BY ADVS.
A.RAJASIMHAN
VYKHARI.K.U
SHARAFUDHEEN M.K.
SAUMYA MEREENA JACOB
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
SRI G SUDHEER, PP
2025:KER:17643
Bail Appl. Nos.8595 & 9292 OF 2024
3
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.03.2025, ALONG WITH Bail Appl..8595/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:17643
Bail Appl. Nos.8595 & 9292 OF 2024
4
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A. Nos.8595 & 9292 of 2024
----------------------------------------------
Dated this the 03rd day of March, 2025
ORDER
These Bail Applications are connected and therefore I
am disposing these bail applications by a common order.
2. Petitioners are the accused in Crime
No.28/2023 of Trivandrum Excise Range. The above case is
registered against the petitioners and another alleging offences
punishable under Sections 22(c), 25 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short, the
NDPS Act).
3. The prosecution case is that, on 09.10.2023 at
9.15 pm, the 1st accused was found in possession of 61.5 gms of
MDMA and the 2nd accused was found in possession of 32.8 gms
of MDMA and another 5.2 gms of MDMA was seized from a
Honda Deo Scooter belongs to the 2 nd accused. Therefore the
total quantity seized is 109.5 gms of MDMA. The petitioners
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Bail Appl. Nos.8595 & 9292 OF 2024
were arrested on 10.10.2023.
4. Heard counsel for the petitioners and the
Public Prosecutor.
5. The counsel appearing for the petitioners 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], 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
petitioners are in custody from 10.10.2023, and therefore the
petitioners are entitled bail. The Public Prosecutor seriously
opposed the Bail Applications.
6. This Court considered the contentions of the
petitioners and the Public Prosecutor. In Ankur Chaudhary's
case (Supra) the Apex Court observed like this:-
"6. Now, on examination, the panch witnesses have
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Bail Appl. Nos.8595 & 9292 OF 2024
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."
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."
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Bail Appl. Nos.8595 & 9292 OF 2024
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,
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
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Bail Appl. Nos.8595 & 9292 OF 2024
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
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
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Bail Appl. Nos.8595 & 9292 OF 2024
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 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
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Bail Appl. Nos.8595 & 9292 OF 2024
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)
10. Admittedly, in this case the quantity seized is
commercial quantity. The petitioners in these cases are in
custody from 10.10.2023. In such circumstances, I am of the
considered opinion that the petitioners 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
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Bail Appl. Nos.8595 & 9292 OF 2024
judgments.
Therefore, these bail applications are disposed of with
the following directions:-
1. The petitioners are 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 (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
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Bail Appl. Nos.8595 & 9292 OF 2024
weeks from the date of receipt of the
application.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
jv
