Kerala High Court

Ubaid Amir Ismail vs State Of Kerala on 10 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                         2025:KER:19972

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946

                      BAIL APPL. NO. 7106 OF 2024

     CRIME NO.983/2023 OF Pathanamthitta Police Station,

                               Pathanamthitta

PETITIONER/S:

    1    UBAID AMIR ISMAIL,
         AGED 36 YEARS
         S/O NAZEER, NJANDUKALLIL HOUSE, KUMBAZHA NORTH,
         PATHANAMTHITTA,NOW RESIDING AT, MADATHIL HOUSE,
         NALKALIPPADI,KUMBAZHA PO PATHANAMTHITTA., PIN -
         689671

    2    JOEL P KURIAN,
         AGED 29 YEARS
         S/O P K KURIAN,PANACHAYIL VEEDU,
         PERUMTHURUTHY.P.O, THIRUVALLA,PATHANAMTHITTA.,
         PIN - 689107
         BY ADVS.
         REJEESH M.A.
         ANWIN SHAJ
         VIDHU C.
         ARUN GOPI
RESPONDENT/S:

         STATE OF KERALA,
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         PP-G SUDHEER


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.03.2025,     THE    COURT     ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                2025:KER:19972
BAIL APPL. NO.7106 OF 2024

                               2
                 P.V.KUNHIKRISHNAN, J
                 --------------------------------
                    B.A.No.7106 of 2024
                  -------------------------------
          Dated this the 10th day of March, 2025

                             ORDER

Petitioners are accused Nos.1 and 3 in Crime

No.983/2023 of Pathanamthitta Police Station. The above

case is registered against the petitioners alleging offences

punishable under Sections 22(c), 29 and 20(b)(ii)(C) of the

Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

2. The gist of the prosecution case is that: the

Inspector of Police, Pathanamthitta, seized 98.400 kg of Ganja

and 500 gm of MDMA from the house owned by one Rafeek

situated in Karimpinakkuzhy in Pathanamthitta and 4 kg of

Ganja from a car bearing. registration No.KL-03-AE-2548,

parked in the porch of the said house on 26.07.2023 at about

18.00 hours. The three accused were arrested from the

house, and the above crime was registered. During the course

of the investigation, it was revealed that the contraband

articles were handed over to the accused by the 4 th accused 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

at Bangalore, who was already in remand in connection with

Crime No.108/2023 of the Excise Range Office, Sulthan

Bathery, for committing a similar offence. Thus, the accused

have committed the above offences. The counsel for the

petitioners submitted that the petitioners are in custody from

26.07.2023.

3. Heard counsel for the petitioners and the Public

Prosecutor. The Public Prosecutor submitted that an objection

is filed in this bail application. This Court perused the same

also.

4. The counsel appearing for the petitioners 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 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

Section 37 of the NDPS Act can be diluted. The counsel

submitted that, in this case the petitioners are in custody

from 26.07.2023 and therefore, the petitioners are entitled

bail.

5. The Public Prosecutor seriously opposed the Bail

Application. The Public Prosecutor submitted that, the

allegation against the petitioners are very serious and the

quantity of contraband seized is commercial quantity.

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 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:19972 BAIL APPL. NO.7106 OF 2024

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 assigning reasons for summoning the additional witnesses was to be justified, one more opportunity was given to the 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

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 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 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

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 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 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

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 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) 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

10. Admittedly, in this case the quantity seized is

commercial quantity. The petitioners in this case are in

custody for more than 20 months. 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 judgments.

Therefore, this bail application is 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 2025:KER:19972 BAIL APPL. NO.7106 OF 2024

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 weeks from the date of receipt of the

application.