Fadhil Nizar vs State Of Kerala
2025 Latest Caselaw 4976 Ker

Kerala High Court

Fadhil Nizar vs State Of Kerala on 11 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

 BAIL APPL. NO.2998 OF 2025   1


                                                 2025:KER:20693

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946

                   BAIL APPL. NO. 2998 OF 2025

CRIME NO.391/2022 OF Kasaba Police Station, Palakkad, Palakkad

         AGAINST THE ORDER/JUDGMENT DATED IN SC NO.408 OF

 2024 OF ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD

 PETITIONER(S)/ACCUSED NO.5:

             FADHIL NIZAR
             AGED 26 YEARS, S/O MUHAMMED NIZAR, AYISHA
             MANZIL, NEAR FATHIMA MATHA CHURCH, FATHIMA PURAM
             POST, KOTTAYAM DISTRICT, PIN - 686 102

             BY ADVS.
             SAM ISAAC POTHIYIL
             S.SURAJA
             MUHAMMED SUHAIR C.A
 RESPONDENT(S)/COMPLAINANT:

     1       STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, PIN - 682 031
     2       STATION HOUSE OFFICER
             KASABA POLICE STATION PALAKKAD, PALAKKAD
             DISTRICT, PIN - 678622
 BY ADV.:

             SRI. NOUSHAD K A, SR.PP


         THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
 ON 11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
 FOLLOWING:
 BAIL APPL. NO.2998 OF 2025    2


                                                  2025:KER:20693

                 P.V.KUNHIKRISHNAN, J
               ------------------------------------
                   B.A.No.2998 of 2025
               ------------------------------------
          Dated this the 11th day of March, 2025


                             ORDER

The petitioner is an accused in SC No.408/2024 on

the file of Additional District Court (ADHOC), Palakkad

arising from Crime No.391 of 2022 of Kasaba Police

Station, Palakkad. The above case is registered against

the petitioner alleging offences punishable under Sections

20(b)(ii)(C), 27(A) and 29 of the Narcotic Drugs and

Psychotropic Substances (NDPS) Act, 1985.

2. The prosecution case is that, on 02-06-2022

accused number 1 to 5 in pursuance of the criminal

conspiracy, bring huge quantity of Ganja from the

Arakkuvali, transported the contraband in vehicle number

KL-05-AV-6663, the said vehicle met with an accident at

salem Tamilnadu. The accused shifted the contraband to

vehicle bearing number KL-05-AV-2235 and accused

number 1 and 2 travelled in the said car and one packet of

2025:KER:20693

contraband article was shifted to KL-05-AA-1551. When the

vehicle reached walayar toll plaza, Excise Enforcement and

Anti Narcotic Special Squad has intercepted the vehicle.

When Mr Subin, the Excise inspector started to examine

the vehicle bearing KL-05-AV-2235 by getting in to the

vehicle and the vehicle moved away and Mr Subin

happened to fell down from the vehicle. The vehicle

bearing number KL-05-AA-1551 was detained and

intermediate quantity of 1.5 Kg of Ganja was seized and

the petitioner was arrested in Crime Number 28/2022

Palakkad Excise Range was registered under 20(b)(ii)(B),

25 and 29 of NDPS Act. Later the vehicle barged through

the barricades abandoned the ganja (124.935 Kg) at a

place called Kaithakuzhi Elappully Panchayath, later the

petitioner is arrayed as 5th accused in the above crime

and he was arrested on 02.11.2023.

3. Heard the learned counsel appearing for the

petitioner and the learned Prosecutor.

4. The counsel for the petitioner submitted that

the petitioner is in custody for the last one year and four

2025:KER:20693

months. 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 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 02.11.2023 and therefore the petitioner is

entitled bail.

5. The Public Prosecutor opposed the bail

application. Public Prosecutor submitted that the quantity

of contraband seized from the petitioner is commercial

quantity and hence Section 37 of the NDPS Act is

attracted.

6. This Court considered the contentions of

the petitioner and the Public Prosecutor. In Ankur

Chaudhary's case (Supra) the Apex Court observed like

2025:KER:20693

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), 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."

2025:KER:20693

9. This Court in Shuaib A.S v. State of Kerala

[2025 SCC Online 618], 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 involved. But as per the decision cited by the Apex Court, it

2025:KER:20693

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 commercial quantity of contraband is involved and the accused continues in custody for years, say for

2025:KER:20693

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 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

2025:KER:20693

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 of

contraband seized is commercial quantity. The petitioner

in this case is in custody for the last 484 days. 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 principles laid down by the

Apex Court and this Court in the above judgments.

Therefore, this bail application is disposed of with

the following directions:-

2025:KER:20693

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 principles laid down by the

Apex Court in Ankur Chaudhary's case

(supra), Nitish Adhikary's case (supra),

Hasanujjaman's case (supra) and also

the principle laid down by this Court in

Shuaib's case (supra), within two weeks

from the date of receipt of the application.

Sd/-

P.V.KUNHIKRISHNAN, JUDGE nvj