Kerala High Court
Lijin vs State Of Kerala on 25 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:25401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
BAIL APPL. NO. 3815 OF 2025
CRIME NO.1766/2023 OF Attingal Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.182
OF 2024 OF HIGH COURT OF KERALA
PETITIONER/S:
LIJIN
AGED 39 YEARS
S/O. SHAKIR, VILAYIL PUTHEN VEEDU, KAYALVARAM
DESOM, VAKKOM, THIRUVANANTHAPURAM DISTRICT, PIN -
695308
BY ADVS.
C.S.MANU
DILU JOSEPH
C.A.ANUPAMAN
T.B.SIVAPRASAD
NEETHU.K.SHAJI
C.Y.VIJAY KUMAR
MANJU E.R.
ALINT JOSEPH
PAUL JOSE
DAINY DAVIS
RILNA RADHAKRISHNAN
MAHESH KUMAR K.
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BAIL APPL. NO.3815 OF 2025
2
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO.3815 OF 2025
3
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A. No.3815 of 2025
----------------------------------------------
Dated this the 25th day of March, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita (BNSS).
2. Petitioner is the accused No.3 in Crime
No.1766/2023 of Attingal Police Station. The above case is
registered against the petitioner alleging offences punishable
under Sections 22(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, the NDPS Act).
3. The prosecution case is that, the petitioner and
other accused were found in possession of 89.70 gms of MDMA in
a Toyota Altis car for the purpose of sale. The petitioner was
arrested on 30.07.2023.
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
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BAIL APPL. NO.3815 OF 2025
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 30.07.2023 and therefore, the petitioner is entitled bail. The
Public Prosecutor seriously opposed the Bail Application.
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."
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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."
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
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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
instance of the prosecution is the `decisive factor'.
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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
examined all the witnesses already cited, the
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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)
10. Admittedly, in this case the quantity seized is
commercial quantity. The petitioner in this case is in custody from
30.07.2023. In such circumstances, I am of the considered opinion
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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 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
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v. State of Kerala [2025 SCC Online 618],
within two weeks from the date of receipt of the
application.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG
