Kerala High Court
Nidhin vs State Of Kerala on 5 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 2902 OF 2025 1
2025:KER:18709
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
BAIL APPL. NO. 2902 OF 2025
CRIME NO.157/2024 OF Kunnamkulam Police Station, Thrissur
PETITIONER/S:
.NIDHIN
AGED 29 YEARS
.S/O MANIKANDAN , KURUTHACHAN (H) , CHERANALLOR,
THALAKOTUKARA P.O , THRISSUR DT.,KERALA ,, PIN -
680501
BY ADV V.HARIKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 STATION HOUSE OFFICER OF POLICE
KUNNAMKULAM POLICE STATION, THRISSUR, PIN - 680503
OTHER PRESENT:
SMT.SEETHA S., SR.P.P.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BAIL APPL. NO. 2902 OF 2025 2
2025:KER:18709
P.V.KUNHIKRISHNAN, J
--------------------------------------
B.A. No. 2902 of 2025
--------------------------------------
Dated this the 5th day of March, 2025
ORDER
The petitioner is the 2nd accused in Crime
No.157/2024 of Kunnamkulam Police Station. The above case
is registered against the petitioner alleging offences
punishable under Secs. 22(C) and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short 'NDPS
Act')
2. The prosecution case is that on 27.01.2024 at
6.05 pm, search was conducted in the house of the 2 nd
accused and seized 65 gms of MDMA. The accused Nos.1
and 2 were arrested on the spot with the contraband article.
The petitioner is the 2nd accused. He is in custody from
27.01.2024.
2025:KER:18709
3. Heard counsel for the petitioner and the 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] 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
27.01.2024 and therefore the petitioner is entitled bail.
5. 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.
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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."
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:-
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"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 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
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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
cases, where dilatory tactics even in remote
possibility, negligible liability, bare minimum or
mere impossibility is the volition, hand out or
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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 311
of Cr.P.C to summon additional witnesses,
without showing the purpose of their
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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)
10. Admittedly, in this case the quantity seized is
commercial quantity. The petitioner in this case is in
custody for more than 13 months. In such circumstances, I
am of the considered opinion that the petitioner can file a
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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 (Crl.) No.5769 of
2025:KER:18709
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
SKS
