IMPORTANT POINT
Prolonged incarceration due to prosecution delays may warrant bail despite statutory restrictions under the NDPS Act, safeguarding the fundamental right to personal liberty under Article 21.

ORDER :

(P.V. KUNHIKRISHNAN, J.)

These Bail Applications are connected and therefore I am disposing these bail applications by a common order.

2. Petitioners are the accused in Crime No.28/2023 of Trivandrum Excise Range. The above case is registered against the petitioners and another alleging offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act).

3. The prosecution case is that, on 09.10.2023 at 9.15 pm, the 1^st accused was found in possession of 61.5 gms of MDMA and the 2^nd accused was found in possession of 32.8 gms of MDMA and another 5.2 gms of MDMA was seized from a Honda Deo Scooter belongs to the 2^nd accused. Therefore the total quantity seized is 109.5 gms of MDMA. The petitioners were arrested on 10.10.2023.

4. Heard counsel for the petitioners and the Public Prosecutor.

5. The counsel appearing for the petitioners raised a short point. The counsel relied on the judgments 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 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 petitioners are in custody from 10.10.2023, and therefore the petitioners are entitled bail. The Public Prosecutor seriously opposed the Bail Applications.

6. This Court considered the contentions of the petitioners 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 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.”

7. 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.

8. 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.”

9. 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 speci