IMPORTANT POINT
Prolonged incarceration due to prosecution delay can override statutory bail restrictions under Section 37(1)(b) of the NDPS Act, protecting the accused's liberty under Article 21.

ORDER :

1. The petitioner is an accused in SC No.323 of 2024 of Additional Sessions Court-II, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 22(C), 23(C), 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2. The prosecution case is that, upon intelligence received by the special intelligence and investigation branch customs house Cochin to the effect that an article in the postal appraising department address the applicant has reached the International Post office, YMCA, Cochin, and as per the authorisation inspector special intelligence customs house and team of officers reached the said place and examined the subject article a white cover bearing address of the accused was opened and found a white colour printed paper and behind this paper a silver colour packet for spaced and on opening the silver colour packet 3 steps of stamps multi coloured on one side were found inside it strips containing 17 numbers 15 numbers and three numbers many times the weight of the 123 numbers, taken and found to be 1.41 grams. 2 mini stamps were taken from two of the set three strips and tested using drug detection kits and it indicated the presence of LSD. Hence it is alleged that the accused committed the offence.

3. Heard counsel for the petitioner and the Standing Counsel for the respondent.

4. 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 02.09.2023 and therefore the petitioner is entitled bail.

5. The Standing Counsel seriously opposed the Bail Application. The Standing Counsel submitted that the allegation against the petitioner is very serious and the quantity of contraband seized is commercial quantity.

6. 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 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) 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.”

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 re