Kerala High Court

Ragib Hussain vs State Of Kerala on 4 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                   2025:KER:18250
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946

                  BAIL APPL. NO. 10071 OF 2024

CRIME NO.6/2023 OF NARCOTICS CONTROL BUREAU, KOCHI, Ernakulam

 AGAINST THE ORDER DATED 15.12.2023 IN BAIL APPL. NO.10138 OF

                  2023 OF HIGH COURT OF KERALA


PETITIONER/ACCUSED NO.1:

            RAGIB HUSSAIN
            AGED 22 YEARS, SON OF MUSTHAFA A.K RESIDING AT ZAIN
            CHENGOTTUKAVU, EDAKULAM P.O, KOYILANDY, KOZHIKODE,
            PIN - 673 306.

            BY ADVS.
            P.M.ZIRAJ
            IRFAN ZIRAJ



RESPONDENT/COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682 031.

    2       JUNIOR INTELLIGENCE OFFICER
            NARCOTICS CONTROL BUREAU, COCHIN
            REPRESENTED BY SPECIAL P.P, NARCOTIC CONTROL
            BUREAU, HIGH COURT OF KERALA, PIN - 682 031.

            BY ADV
            R.VINU RAJ, SPL.PP


        THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                     2025:KER:18250
B.A No.10071 of 2024
                                  2
                 P.V.KUNHIKRISHNAN, J
                --------------------------------
                  B.A.No.10071 of 2024
                 -------------------------------
          Dated this the 4th day of March, 2025


                           ORDER

The petitioner is an 1st accused in O.R No.6 of

2023 of Narcotics Control Bureau (NCB), Kochi. The above

case is registered against the petitioner and others

alleging offences punishable under Sections 21, 22 (c), 28

and 29 of Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'NDPS Act')

2. The prosecution case is that, on getting

information from the Ernakulam Head Post Office that

four suspicious parcels containing suspected alleged

narcotic drugs were lying in the Post Office, the officers of

the NCB conducted a search of the parcel in the presence

of Senior Post Master and seized multi colored design

paper allegedly believing it to be LSD. It is submitted that 2025:KER:18250

the NCB team called accused Nos. 1 to 4 to their office

and subsequently arrested them and produced before the

court. Ther petitioner is in Custody from 23.06.2023.

3. Heard counsel for the petitioner and the

Special Public Prosecutor for the respondent.

4. 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], 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 23.06.2023

and therefore the petitioner is entitled bail. The counsel 2025:KER:18250

also submitted that the petitioner is ready to abide any

conditions, if this Court grants him bail.

5. The Special Public Prosecutor seriously

opposed the Bail Application. The special Public

Prosecutor submitted that an objection is filed in this bail

application, this Court perused the same also.

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, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered."

2025:KER:18250

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) 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."

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 2025:KER:18250

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 NDPS 2025:KER:18250

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 2025:KER:18250

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 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 2025:KER:18250

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 petitioner in this case is in

custody from 23.06.2023. 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.

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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 (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 2025:KER:18250

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/-