IMPORTANT POINT
Prolonged incarceration due to prosecution delays can override statutory bail restrictions under Section 37 of the NDPS Act, aligning with Article 21's protection of personal liberty.

ORDER :

These Bail Applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita .

2. Petitioners in these cases are accused Nos.2, 5 and 9 in Crime No.900/2023 of Palluruthy Police Station.

3. The prosecution case is that, on 07.04.2023, during the course of yellow patrolling duty, the detecting officer received information that two persons were restrained by the public along with a car near Madura Company at KMP Road, Palluruthy. The police party proceeded to the above mentioned place and during the enquiry, the investigating agency found total quantity of 174.250 Kg of Ganja from the car. Hence it is alleged that the accused committed the offences. The petitioner in B.A. No.5138/2024 was arrested on 19.08.2023, the petitioner in B.A. No.6964/2024 was arrested on 27.04.2023 and the petitioner in B.A. No.8313/2024 was arrested on 17.08.2023.

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

5. The counsel appearing for the petitioners 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 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 these cases the petitioners are in custody from 19.08.2023, 27.04.2023 & 17.08.2023, and therefore the petitioners are entitled for bail.

6. The Public Prosecutor seriously opposed these bail applications. The Public Prosecutor submitted that the allegation against the petitioners is very serious and the quantity of contraband seized is commercial quantity.

7. 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.”

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 was 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. This Court in Shuaib A.S v. State of Kerala [ 2025 SCC Online 618 ] 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 n