IMPORTANT POINT
Prolonged incarceration due to prosecution delays can allow bail despite statutory restrictions under the NDPS Act, as it violates the fundamental right under Article 21 of the Constitution.

ORDER :

P.V.KUNHIKRISHNAN, J.

This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita .

2. Petitioner is the 1^st accused in Crime No.438 of 2023 of Thottilpalam Police Station, Kozhikode. The above case is registered against the petitioner and another alleging offences punishable under Sections 22(c) , 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

3. The prosecution case is that, on 23.09.2023 at about 10:20 p.m., the Detecting OfÏcer and party received a reliable information that the 1^st and 2^nd accused had hatched a conspiracy and were travelling in a car with contraband articles. Accordingly, the Detecting OfÏcer intercepted the car and conducted a search of the accused as well as the vehicle. It is submitted that 96.44 grams of MDMA was seized from the pants pocket of the 1^st accused and from the dashboard of the car. Hence it is alleged that the accused committed the offence. It is also submitted that the petitioner is a HIV-positive patient. The petitioner was arrested on 23.09.2023 and he is in custody for about one year and five months.

4. Heard counsel for the petitioner and the Public Prosecutor for the respondent.

5. The counsel appearing for the petitioner raised a short point. The counsel relied on the judgment of 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 also Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] and submitted that when there is incarceration for more than one year and four months, the rigour under Section 37 of the NDPS Act can be diluted. The counsel submitted that, in this case the petitioner is in custody from 23.09.2023 and therefore the petitioner is entitled bail.

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

7. 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.”

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) 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.”

10. 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