Kerala High Court
Jithin Babu vs State Of Kerala on 7 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:19728
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
BAIL APPL. NO. 8464 OF 2024
CRIME NO.438/2023 OF THOTTILPALAM POLICE STATION,
KOZHIKODE
PETITIONER/ACCUSED:
JITHIN BABU
AGED 38 YEARS, S/O SURESH BABU, MUTHALOLI,
PATHIYARAKKARA P.O, VADAKARA, KOZHIKODU- 673
105,
BY ADVS.
M.J.SANTHOSH
ANTONY PAUL
HASEENA T.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
BY ADV
G SUDHEER, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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B.A No.8464 of 2024
2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.8464 of 2024
-------------------------------
Dated this the 7th day of March, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the 1st accused in Crime
No.438 of 2023 of Thottilpalam Police Station, Kozhikode.
The above case is registered against the petitioner and
another alleging offences punishable under Sections
22(c), 25 and 29 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'NDPS Act').
3. The prosecution case is that, on 23.09.2023
at about 10:20 p.m., the Detecting Officer and party
received a reliable information that the 1 st and 2nd
accused had hatched a conspiracy and were travelling in
a car with contraband articles. Accordingly, the Detecting
Officer intercepted the car and conducted a search of the
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accused as well as the vehicle. It is submitted that 96.44
grams of MDMA was seized from the pants pocket of the
1st accused and from the dashboard of the car. Hence it is
alleged that the accused committed the offence. It is also
submitted that the petitioner is a HIV-positive patient.
The petitioner was arrested on 23.09.2023 and he is in
custody for about one year and five months.
4. Heard counsel for the petitioner and the
Public Prosecutor for the respondent.
5. 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
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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 23.09.2023
and therefore the petitioner is entitled bail.
6. 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.
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
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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.
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
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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
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
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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 commercial quantity
of contraband is involved and the accused
continues in custody for years, say for
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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 order, one
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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 than one year and five months. In such
circumstances, I am of the considered opinion that the
petitioner can file a fresh bail application before the trial
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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 2022],
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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
2025:KER:19728
APPENDIX OF BAIL APPL. 8464/2024
PETITIONER'S ANNEXURES
Annexure A1 THE TRUE COPY OF ORDER IN BAIL
APPLICATION NO. 4306/2024 DATED 19-07-
Annexure A2 THE TRUE COPY OF DAILY STATUS
DOWNLOADED FROM E-COURTS IN S.C. NO.
15/2024 ON THE FILE OF HON'BLE SPECIAL
COURT (NDPS CASES), VADAKARA DATED
04/10/24
Annexure A3 THE TRUE COPY OF ORDER DATED 09-08-
2024 IN CRL.M.P. NO. 713/2024 IN S.C.
NO. 15/2024 OF HON'BLE SPECIAL COURT
(NDPS CASES), VADAKARA
Annexure A4 THE TRUE COPY OF ORDER DATED 24-08-
2024 IN CRL.M.P. NO. 786/2024 IN S.C.
NO. 15/2024 OF HON'BLE SPECIAL COURT
(NDPS CASES), VADAKARA
Annexure A5 THE TRUE COPY OF ORDER DATED 10-10-
2024 IN CRL.M.P. NO. 861/2024 IN S.C.
NO. 15/2024 OF HON'BLE SPECIAL COURT
(NDPS CASES), VADAKARA
Annexure A6 THE TRUE COPY OF THE HUMAN
IMMUNODEFICIENCY VIRUS AND ACQUIRED
IMMUNE DEFICIENCY SYNDROME (PREVENTION
AND CONTROL) ACT, 2017
Annexure A7 THE TRUE COPY OF JUDGMENT IN 2023 (6)
KHC SN 15 (SC) CPL ASHISH KUMAR
CHAUHAN VS COMMANDING OFFICER & OTHERS
Annexure A8 THE TRUE COPY OF ORDER IN BAIL
APPLICATION NO. 341/2023 DATED 27-01-
2025:KER:19728
Annexure A9 THE TRUE COPY OF JUDGMENT IN ANKUR
CHAUDHARY V. STATE OF MADHYA PRADESH
SPECIAL LEAVE APPEAL (CRL.)
NO.4648/2024 DATED 28/05/2024
