2025:KER:30895 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 9TH DAY OF APRIL 2025/19TH CHAITHRA, 1947 BAIL APPL. NO. 4591 OF 2025 CRIME NO.1959/2023 OF ALUVA EAST POLICE STATION, ERNAKULAM AGAINST THE ORDER DATED 03.03.2025 IN BAIL APPL. NO.7420 OF 2024 OF HIGH COURT OF KERALA PETITIONER/ACCUSED NO.1: AFSAL K.A AGED 26 YEARS, S/O ABDUL ASEES, MOOPUKANDATHIL HOUSE, KALLUNGAPARAMBU BHAGAM, KUNNATHERY, CHOORNIKKARA VILLAGE, ALUVA, ERNAKULAM DISTRICT., PIN – 683 101. BY ADVS. K.MOHAMMED RAFEEQ P.M.MATHEW BIBIN MATHEW AMARNATH R LAL SANALDEV E.P. VISHNUMAYA ANANDAN SONYMON ANTONY AJMAL V. KARIM RESPONDENT/STATE AND COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN – 682 031. 2025:KER:30895 B.A No.4591 of 2025 2 2 STATION HOUSE OFFICER ALUVA EAST POLICE STATION, ERNAKULAM DISTRICT, PIN – 683 101. BY ADV HRITHWIK C S, SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:30895 B.A No.4591 of 2025 3 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.4591 of 2025 ------------------------------- Dated this the 9th day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.1959 of 2023 of Aluva East Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 8(c), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 3.The prosecution case is that the accused was found in possession of 59.710 grams of MDMA. Subsequently, it was found that the same is Methamphetamine. The petitioner was arrested on 03.12.2023. 2025:KER:30895 B.A No.4591 of 2025 4 4. Heard counsel for the petitioner and the Public Prosecutor. 5. Counsel appearing for the petitioner submitted that even after issuing directions by this Court to consider the bail application in the light of the decisions of the Hon’ble Apex Court, the learned Session Judge has not granted bail to the petitioner. The counsel submitted that the petitioner is in custody for one year and four months. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. 6. Public Prosecutor opposed the bail application. 7. The petitioner earlier filed a bail application before this Court and the bail application was disposed of by this Court as per Annexure-5 order. The relevant portion of Annexure -5 order is extracted hereunder :- 1. The petitioner is free to file a bail application before the Jurisdictional Court within two weeks raising all the 2025:KER:30895 B.A No.4591 of 2025 5 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 v. State of Kerala [2025 SCC Online 618], within two weeks from the date of receipt of the application. 8. Thereafter, the petitioner filed a bail application before the Jurisdictional Court concerned. The same is dismissed as per Annexure-8. This Court perused Annexure-8 order. I am not satisfied the way, in which the above order is passed, I do not want to make any further opinion about the same. 2025:KER:30895 B.A No.4591 of 2025 6 9. Admittedly, the petitioner is in custody for one year and four months. The petitioner was arrested on 03.12.2023. 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.” 10. 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. 2025:KER:30895 B.A No.4591 of 2025 7 11. In Nitish Adhikary's case (supra) case 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.” 12. 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 stating the reasons for examining the additional witnesses in consideration of the seriousness of the offences and this Court 2025:KER:30895 B.A No.4591 of 2025 8 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 2025:KER:30895 B.A No.4591 of 2025 9 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 und er 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 2025:KER:30895 B.A No.4591 of 2025 10 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 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 2025:KER:30895 B.A No.4591 of 2025 11 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) 13. Keeping in mind the above principle laid down by the Hon’ble Apex Court, this Court perused the prosecution case, the petitioner is in custody from 03.12.2023. The Trial is no started even now. In such circumstances, I think the rigour under Section 37 of NDPS Act can be relaxed. The petitioner can be released on bail after imposing stringent conditions. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 2025:KER:30895 B.A No.4591 of 2025 12 1. Petitioner shall be released on bail on executing 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/her from disclosing such facts to the Court or to any police officer. 2025:KER:30895 B.A No.4591 of 2025 13 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. 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 2025:KER:30895 B.A No.4591 of 2025 14 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 AMR