B.A.No.4303 of 2025 1 2025:KER:26727 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 BAIL APPL. NO. 4303 OF 2025 CRIME NO.25/2023 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, PALAKKAD, PALAKKAD AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.10341 OF 2024 OF HIGH COURT OF KERALA PETITIONER(S)/ACCUSED NO.1: JEESMON VARGEESE AGED 21 YEARS S/O.VARGEESE, VIRIYAPILLIYIL HOUSE, EZHUPUNNA POST, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688548 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA MUHAMMED SUHAIR C.A RESPONDENT(S)/RESPONDENTS/COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD PALAKKAD DISTRICT, PIN - 678001 BY ADV. SR PP – SRI.HRITHWIK C S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.4303 of 2025 2 2025:KER:26727 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.4303 of 2025 ------------------------------- Dated this the 28th day of March, 2025 O R D E R This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.25/2023 of Excise Enforcement and Anti Narcotic Special Squad, Palakkad. The above case is registered against the petitioner and others alleging offences punishable under Sections 20(b)(ii) (A), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). 3. The prosecution case is that, on 25.05.2023 at about 03.10 P.M., in the platform of Palakkad Junction Railway Station, the accused were found in possession of 50.85 grams of Hashish Oil, 8.65 grams of Charas and 0.50 grams of L.S.D. Hence it is alleged that the accused committed the offence. The petitioner was arrested on 25.05.2023. B.A.No.4303 of 2025 3 2025:KER:26727 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel appearing for the petitioner submitted that the petitioner earlier filed a bail application before this Court as B.A. No.10341/2024. This Court as per order dated 24.02.2025 in B.A. No.10341/2024 directed the petitioner to file a bail application before the trial court and the same was also dismissed as per Annexure-A4 order. The counsel submitted that the petitioner is in custody from 25.05.2023. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the quantity of contraband seized from the petitioner is commercial quantity and therefore Section 37 of the NDPS Act is attracted. The Public Prosecutor submitted that, this Court may not entertain this bail application. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. This Court as per order dated 24.02.2025 in B.A. No.10341/2024 issued certain B.A.No.4303 of 2025 4 2025:KER:26727 directions to the trial court. It will be better to extract the same: “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'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.” 8. The intention of this Court is clear from the above directions itself. The trial court as per Annexure-A4 order dismissed the bail application filed by the petitioner. I am not satisfied with the way in which the trial court dismissed the bail application when there was specific direction from this Court to consider three Apex Court judgments. When this Court directed to consider the application based on certain judgments, the court need not interpret the same. The trial court stated that there are other three Bench decisions. Admittedly, the B.A.No.4303 of 2025 5 2025:KER:26727 petitioner is in custody from 25.05.2023. He is in custody for one year and ten months. In such circumstances, as held by the Apex Court, this Court has to consider the impact of Article 21 of the Constitution of India. In Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416], 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.” 9. In Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023], 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 was commercial quantity. Even then the B.A.No.4303 of 2025 6 2025:KER:26727 Apex Court granted bail. 10. In Nitish Adhikary @ Bapan v. The State of West Bengal [SLP to Appeal (Crl.) No.5769 of 2022, 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.” 11. Keeping in mind the above principles laid down by the Apex Court and also considering the Article 21 of the Constitution of India, I think the petitioner can be released on bail after imposing stringent conditions. The petitioner is in custody for one year and ten months. Indefinite incarceration of the petitioner is not necessary. In such situation, as held by the Apex Court, the rigour under Section 37 of the NDPS Act can be relaxed. Therefore, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on executing B.A.No.4303 of 2025 7 2025:KER:26727 a bond for Rs.2,00,000/- (Rupees Two Lakhs only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. B.A.No.4303 of 2025 8 2025:KER:26727 5. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also. 6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- P.V.KUNHIKRISHNAN, JUDGE DM