The High Court · 2025

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 BY ADV.: SR PP-NOUSHAD K A THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO.4448 OF 2025 2 P.V.KUNHIKRISHNAN, J -------------------------------------- B.A.No.4448 of 2025 -------------------------------------- Dated this the 03rd day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.450/2023 of Aluva West Police Station (Alangad), Ernakulam, which is now pending as SC No.68/2024 on the file of the Additional District and Sessions Judge – I, North Paravur. 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 (hereinafter referred to as 'the NDPS Act').

3. The prosecution case is that, on 06.10.2023, the petitioner, who was the 1st accused, was found in possession of 96.112 grams of MDMA which was concealed in a shoe in the room of the petitioner. The petitioner was arrested on 20.10.2023 and he is in custody for one year and BAIL APPL. NO.4448 OF 2025 3 six months.

4. Heard learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that, even though this Court directed the trial court to consider the bail application in the light of the Apex Court decisions, the trial court has not considered the same and dismissed the same only for the reason that the petitioner has got criminal antecedents. The contention of the petitioner is that, that case was registered simultaneously with the present case based on an allegation that 2.67 grams of MDMA was seized from the pocket of the petitioner. The contention of the petitioner is that two separate cases are registered only to show that the petitioner has got criminal antecedents. The counsel submitted that the petitioner is in custody for one year and six months and therefore, the petitioner is entitled the benefit of the Apex Court decisions in Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416], Nitish Adhikary @ Bapan v. The State of West Bengal BAIL APPL. NO.4448 OF 2025 4 [SLP to Appeal (Crl.) No.5769 of 2022] and Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023]. It is also submitted that there is no presiding officer in the jurisdictional court and there is no chance to start trial in the near future.

6. The Public Prosecutor seriously opposed the bail application. Public Prosecutor submitted that the allegation against the petitioner is very serious and the quantity of contraband seized from the petitioner is commercial quantity.

7. This Court considered the contention of the petitioner and the Public Prosecutor. It is an admitted fact that the petitioner is in custody for one year and six months. It is also an admitted fact that there is no presiding officer in the jurisdictional court and there is no chance to start the trial in the immediate future. 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 BAIL APPL. NO.4448 OF 2025 5 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.”

8. 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.

9. 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.”

10. Keeping in mind the above dictum, this Court considered the facts and circumstances of this case once BAIL APPL. NO.4448 OF 2025 6 again. The main reason for rejecting the bail application of the petitioner is that he is involved in yet another case. But the counsel for the petitioner made available the FIR in that case. It seems that two separate cases are registered based on the allegation that some MDMA is seized from the house of the petitioner and 2.67 grams of MDMA is seized from the pocket of the petitioner. Considering the facts and circumstances of the case and also considering the detention period of the petitioner and also 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] and Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023], I think, the petitioner can be released on bail after imposing stringent conditions. This Court also considered the fact that there is no presiding officer in the jurisdictional court. Therefore, this bail application is allowed with the BAIL APPL. NO.4448 OF 2025 7 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. 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 BAIL APPL. NO.4448 OF 2025 8 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 jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution is at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. JUDGE Sd/- P.V.KUNHIKRISHNAN

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 BY ADV.: SR PP-NOUSHAD K A THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO.4448 OF 2025 2 P.V.KUNHIKRISHNAN, J -------------------------------------- B.A.No.4448 of 2025 -------------------------------------- Dated this the 03rd day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.450/2023 of Aluva West Police Station (Alangad), Ernakulam, which is now pending as SC No.68/2024 on the file of the Additional District and Sessions Judge – I, North Paravur. 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 (hereinafter referred to as 'the NDPS Act').

3. The prosecution case is that, on 06.10.2023, the petitioner, who was the 1st accused, was found in possession of 96.112 grams of MDMA which was concealed in a shoe in the room of the petitioner. The petitioner was arrested on 20.10.2023 and he is in custody for one year and BAIL APPL. NO.4448 OF 2025 3 six months.

4. Heard learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that, even though this Court directed the trial court to consider the bail application in the light of the Apex Court decisions, the trial court has not considered the same and dismissed the same only for the reason that the petitioner has got criminal antecedents. The contention of the petitioner is that, that case was registered simultaneously with the present case based on an allegation that 2.67 grams of MDMA was seized from the pocket of the petitioner. The contention of the petitioner is that two separate cases are registered only to show that the petitioner has got criminal antecedents. The counsel submitted that the petitioner is in custody for one year and six months and therefore, the petitioner is entitled the benefit of the Apex Court decisions in Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416], Nitish Adhikary @ Bapan v. The State of West Bengal BAIL APPL. NO.4448 OF 2025 4 [SLP to Appeal (Crl.) No.5769 of 2022] and Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023]. It is also submitted that there is no presiding officer in the jurisdictional court and there is no chance to start trial in the near future.

6. The Public Prosecutor seriously opposed the bail application. Public Prosecutor submitted that the allegation against the petitioner is very serious and the quantity of contraband seized from the petitioner is commercial quantity.

7. This Court considered the contention of the petitioner and the Public Prosecutor. It is an admitted fact that the petitioner is in custody for one year and six months. It is also an admitted fact that there is no presiding officer in the jurisdictional court and there is no chance to start the trial in the immediate future. 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 BAIL APPL. NO.4448 OF 2025 5 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.”

8. 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.

9. 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.”

10. Keeping in mind the above dictum, this Court considered the facts and circumstances of this case once BAIL APPL. NO.4448 OF 2025 6 again. The main reason for rejecting the bail application of the petitioner is that he is involved in yet another case. But the counsel for the petitioner made available the FIR in that case. It seems that two separate cases are registered based on the allegation that some MDMA is seized from the house of the petitioner and 2.67 grams of MDMA is seized from the pocket of the petitioner. Considering the facts and circumstances of the case and also considering the detention period of the petitioner and also 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] and Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023], I think, the petitioner can be released on bail after imposing stringent conditions. This Court also considered the fact that there is no presiding officer in the jurisdictional court. Therefore, this bail application is allowed with the BAIL APPL. NO.4448 OF 2025 7 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. 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 BAIL APPL. NO.4448 OF 2025 8 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 jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution is at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. JUDGE Sd/- P.V.KUNHIKRISHNAN