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2025 DIGILAW 408 (KER)

Najmal Khan S/o Abdulkalam v. State of Kerala

2025-03-03

P.V.KUNHIKRISHNAN

body2025
O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the 1 st accused in Crime No.399 of 2023 of Chavara Police Station, Kollam. The above case is registered against the petitioner and others alleging offences punishable under Sections 22(c), 20(b)(ii)(A) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). The case is now pending as S.C No.1168/2023 on the file of the Additional Sessions Court, Kollam. 3. The prosecution case is that on 08.03.2023 at about 01:30 a.m., a car driven by the 3 rd accused was intercepted and searched. During the search 1.4 grams of MDMA and 33 grams of Ganja was seized from the possession of the petitioner. Further case of the prosecution is that 204 grams of MDMA was found concealed in a flap of the dickey door of the car. Hence it is alleged that the accused committed the offence. The petitioner is in custody from 08.03.2023. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. Counsel for the petitioner submitted that, the petitioner is about to complete two years detention. The counsel submitted that the petitioner is entitled for the benefit of the decision of the Hon’ble 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]. The counsel submitted that the rigour under Section 37 of the NDPS Act is be relaxed in the peculiar facts and circumstances of the case. 6. Public Prosecutor opposed the Bail Application. 7. When this bail application came up for consideration this Court directed the Registry to get a report from the Trial Court about the present stage of the case. A report is submitted by the Additional District and Sessions Judge-I, Kollam, who is holding the charge of the Additional District and Sessions Judge-II, Kollam. It will be better to extract the report submitted by the learned judge:- “With reference to the above, I humbly submit the following before the Hon'ble High Court of Kerala. A report is submitted by the Additional District and Sessions Judge-I, Kollam, who is holding the charge of the Additional District and Sessions Judge-II, Kollam. It will be better to extract the report submitted by the learned judge:- “With reference to the above, I humbly submit the following before the Hon'ble High Court of Kerala. The Hon'ble High Court of Kerala as per order referred to above directed this court to file a report with regard to the probable time required for completion of trial of S.C. No.1168/2023. Accordingly, the following report is submitted. The court of Additional Sessions Judge-II, Kollam is lying vacant. I am holding additional charge of the said court. S.C. No.1168/2023 is a case charge sheeted alleging commission of offences u/s.22(c), 20(b)(ii)(A), 27A and 29 of NDPS Act. The case stands posted to 24.12.2024 for hearing on charge. The prosecution has cited 34 witnesses. Considering the volume of evidence that is likely to be adduced, the number of accused and the number of counsel defending different accused, a period of six months from the date of framing charge appears to be required to dispose of the case. Therefore, I humbly report before the Hon'ble High Court of Kerala that the trial of S.C. No.1168/2023 on the file of this court can be completed within a period of six months from the date of framing charge. The above report is submitted before the Hon'ble High Court of Kerala for favour of kind consideration.” 8. From the above it is clear that as on the date of submitting the report the post of the Additional District and Sessions Judge-II is lying vacant and the Additional District and Sessions Judge-I, Kollam is in- charge. That shows that the evidence is not started and it will take further time to concluded the trial. 9. 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 OfÏcer as a panch witness. 9. 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 OfÏcer 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. 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 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'. 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 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. 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 be released on bail. (underline supplied) 13. In the light of the above principle, I think it is a fit case in which the rigour under Section 37 of the NDPS Act is to be relaxed. When this Court enquired, the Public Prosecutor submitted as per the report received by the Public Prosecutor, no criminal antecedent is alleged against the petitioner. Considering the facts and circumstances of the case, I think the petitioner can be released on bail, because, he is in custody for about two years and the trial is not started even now. Therefore, this bail application is allowed of with the following directions:- 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. Petitioner shall not leave India without permission of the jurisdictional Court. 3. 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. 4. 2. Petitioner shall not leave India without permission of the jurisdictional Court. 3. 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. 4. 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.