Kerala High Court

Mohammed Asif @ Hashif vs State Of Kerala on 13 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

BAIL APPL. NO. 3323 OF 2025
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                                               2025:KER:21499
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
                        BAIL APPL. NO. 3323 OF 2025
  CRIME NO.46/2023 OF AGALI EXCISE RANGE OFFICE, PALAKKAD
        AGAINST     THE     ORDER/JUDGMENT    DATED      IN   BAIL    APPL.
NO.8981 OF 2024 OF HIGH COURT OF KERALA
PETITIONER(S)/ACCUSED NO.3(IN CUSTODY FROM 14.11.2023):

           MOHAMMED ASIF @ HASHIF
           AGED 22 YEARS
           S/O. HAMZA, KUTHUKALLU, PAKKULAM, THAVALAM P.O,
           ATTAPPADI TALUK, PALAKKAD DISTRICT, PIN - 678582

           BY ADVS.
           P.MOHAMED SABAH
           LIBIN STANLEY
           SAIPOOJA
           SADIK ISMAYIL
           R.GAYATHRI
           M.MAHIN HAMZA
           ALWIN JOSEPH
           BENSON AMBROSE
RESPONDENT(S)/STATE & COMPLAINANT:

    1      STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
           KERALA, ERNAKULAM, PIN - 682031

    2      THE EXCISE CIRCLE INSPECTOR
           EXCISE RANGE OFFICE, AGALI, AGALI P.O, PALAKKAD
           DISTRICT, PIN - 678581
           BY ADV.SR PP-HRITHWIK CS


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
13.03.2025,       THE    COURT   ON   THE   SAME   DAY    DELIVERED    THE
FOLLOWING:
 BAIL APPL. NO. 3323 OF 2025
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                                                    2025:KER:21499



                  P.V.KUNHIKRISHNAN, J.
                   --------------------------------
                     B.A. No.3323 of 2025
            ----------------------------------------------
          Dated this the 13th day of March, 2025

                             ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.46/2023

of Agali Excise Range Office, Palakkad. The above case is

registered against the petitioner alleging offences punishable

under Sections 20(b)(ii)(C), 25 and 29 of Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short, the NDPS Act).

3. The prosecution case is that, on 13.11.2023 at

8.00 pm, on receiving secret information, the excise party went

to the place of occurrence and 91 kg of Ganja was found in a

vehicle bearing No.DL-7C/G-4736 and 25.75 kg of Ganja in a

vehicle bearing No.UP-37/A-9786. Accused Nos.1 and 2 were in

the first vehicle, and the 4th accused and the petitioner herein

were found in the second vehicle. Hence it is alleged that the

accused committed the offence. The petitioner was arrested on

14.11.2023.

BAIL APPL. NO. 3323 OF 2025

2025:KER:21499

4. Heard counsel for the petitioner and the

Public Prosecutor.

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 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 14.11.2023 and

therefore the petitioner is entitled bail.

6. The Public Prosecutor seriously opposed the

Bail Application.

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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 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."

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) 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] 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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 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 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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 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 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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 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 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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 be released on bail."

(underline supplied)

11. Admittedly, in this case the quantity of

contraband seized is commercial quantity. The petitioner in

this case is in custody for more than 15 months. 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.

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 BAIL APPL. NO. 3323 OF 2025

2025:KER:21499 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.