Kerala High Court
Ubaid Amir Ismail vs State Of Kerala on 21 May, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2025:KER:35582
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
BAIL APPL. NO. 6480 OF 2025
CRIME NO.983/2023 OF PATHANAMTHITTA POLICE STATION,
PATHANAMTHITTA AGAINST THE ORDER/JUDGMENT DATED 10.03.2025 IN
BAIL APPL. NO.7106 OF 2024 OF HIGH COURT OF KERALA.
PETITIONER:
UBAID AMIR ISMAIL,
AGED 38 YEARS,
S/O NAZEER, NJANDUKALLIL HOUSE,MUNDU KOTTAKKAL PO,
KUMBAZHA NORTH, PATHANAMTHITTA.
NOW RESIDING AT MADATHIL HOUSE,
NALKALIPPADI,KUMBAZHA PO PATHANAMTHITTA,
PIN - 689 645.
BY ADVS.
REJEESH M.A.
ABIJITH CHANDRAN
ARAVIND AJITH
VIDHU C.
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
SRI. NOUSHAD K. A. (PP)
Bail Appl. No.6480 of 2025
2025:KER:35582
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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
21.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Bail Appl. No.6480 of 2025
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BECHU KURIAN THOMAS., J
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Bail Appl. No.6480 of 2025
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Dated this the 21st day of May, 2025
ORDER
This bail application is filed under section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS').
2. Petitioner is the first accused in Crime No.983 of
2023 of Pathanamthitta Police Station which, is now pending as
SC NO.49 of 2024 on the files of the Additional Sessions Court-II,
Pathanamthitta.
3. According to the prosecution, the accused were found
to be in possession of 102.40 kg of Ganja and 500 grams of
MDMA, which was seized from the house and vehicle of the 2 nd
accused, and three accused were arrested. The offence alleged
against the petitioner and other accused are under Sections 22(c),
29 and 20(b)(II)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
4. The learned counsel for the petitioner submitted that
the prosecution allegations are false and, since the petitioner has
been in custody from 26.07.2023, the continued detention is
unnecessary. It was also submitted that a learned single Judge
of this Court had, in BA No.7106 of 2024, directed the trial court
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to consider the bail application of the petitioner in the light of the
decisions mentioned in the said order. It was submitted that in
the Annexure-A2 order dated 24.03.2025, the learned Sessions
Judge dismissed the bail application without considering the
binding precedent in Ankur Chaudhary v. State of Madhya
Pradesh and other decisions.
5. The learned Public Prosecutor, on the other hand,
submitted that the quantity of contraband seized from the
petitioner is substantial and that the decision in Narcotics
Control Bureau v. Mohit Agarwal 2022 (18) SCC 374 is the
binding precedent, which cannot be ignored.
6. I have considered the rival submissions.
7. It is noticed from Annexure-A2, that a learned Single
Judge of this Court had directed the trial Court to consider the
bail application, if any, filed by the petitioner, in a time bound
manner. Subsequently, petitioner filed Crl.M.C.No.2413 of 2025
before the trial court. However, the said application was
dismissed by an order dated 24.03.2025.
8. In this context, it has to be observed that in
Annexure-A1 judgment, the decision of the Supreme Court in
Narcotics Control Bureau v. Mohit Agarwal (supra), which is
by a three judge Bench was not taken note of. In the said
judgment, it was specifically observed by the Supreme Court that
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the period of detention has no bearing when the quantity seized is
commercial.
9. In the instant case, petitioner and other accused were
found in possession of huge quantity of Ganja and even MDMA.
The contraband was intended for sale and they are of the
commercial quantity. In the light of the observations in Mohit
Agarwal's case (supra), petitioner cannot be released on bail on
the basis of the period of detention.
10. As observed by the Supreme Court in State of
Kerala and Others v. Rajesh and Others [(2020) 12 SCC 122],
the scheme of section 37 requires that the power to grant bail
under the NDPS Act is subject to the limitation placed in the said
provision over and apart from the restrictions under the
procedural law and the twin conditions stipulated therein are
required to be satisfied. Further, in the decision in Narcotics
Control Bureau V. Mohit Aggarwal [(2022) 18 SCC 374], it has
been observed that the focus must be on the availability of
reasonable grounds to believe that the accused is not guilty of the
offence alleged against and also that he is unlikely to commit an
offence under the Act. The Supreme Court went on to observe that
the length of the period of custody or that the charge had been
filed or even that the trial has commenced by themselves are not
considerations that can be treated as persuasive to grant bail
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under section 37 of the NDPS Act.
11. Viewed in the light of the above binding precedents,
this Court is of the view that the contention based on long period
of detention cannot be a reason for enlarging the petitioner on
bail. Moreover, having considered the contentions and materials
available, this Court is satisfied that, since the quantity of
contraband, allegedly seized from the petitioner is commercial,
and bearing in mind the seriousness and gravity of the offences
alleged, there are no reasonable grounds, at this stage, to arrive
at a conclusion that the petitioner is not guilty of the offences
alleged. It is also not possible to arrive at a conclusion that he is
not likely to commit a similar offence, if enlarged on bail. Thus,
petitioner has not made out any grounds to dilute the rigour of
section 37 of the NDPS Act. There is thus, no merit in this
application.
12. In the above observations, this is not a fit case to
grant anticipatory bail.
In the result, this application is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
ADS
2025:KER:35582
APPENDIX OF BAIL APPL. 6480/2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER IN BAIL
APPLICATION NO.7106/2024 DATED
10/03/2025.
Annexure A2 TRUE COPY OF THE ORDER IN CRL.M.C
NO.2413/2025 DATED 24/03/2025 OF
ADDITIONAL SESSIONS COURT-II,
PATHANAMTHITTA.
