Prolonged custody without trial commencement can entitle accused to bail despite statutory restrictions under the NDPS Act.

ORDER :

These applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, BNSS) and Section 439 of the Code of Criminal Procedure, by the accused 1, 2 and 4 in Crime No.19/2023 of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram, which is registered against seven accused persons, for allegedly committing the offences punishable under Sections 8(c), 22(c), 20(b)(ii)(C), 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’, in short). The petitioners were arrested and remanded to judicial custody on 9.7.2023. B A No.11181/2024 is filed by the 1^st accused, B.A. No.7059/2024 is filed by the 2^nd accused and B.A.No.4308/2024 is filed by the 4^th respondent. As these applications are filed by the accused in the same crime, they are consolidated, jointly heard and disposed of by this common order.

2. The essence of the prosecution case is that: on 9.7.2023, at around 19 hours, the accused persons had hatched a criminal conspiracy, and the accused 1 to 4 were found in possession of 155.480 kg of ganja and 70.71 grams of MDMA, for the purpose of sale, which were seized from the motor car bearing No. KL 01-CY-2624 and the house bearing No. T.C. No.100/440- 1 of one Omanakuttan near Nehru Junction, Pallithura Desom, Attipra Village. The contraband articles were stored in contravention to the provisions of the NDPS Act. The accused 1 to 4 were arrested with the contraband articles and were taken to custody. The investigation has revealed that the 6^th accused along with the accused 5 and 7 are also involved in the conspiracy and aided in the commission of the offences. Thus, the accused have committed the above offences.

3. Heard; the learned Counsel appearing for the petitioners and the learned Public Prosecutors.

4. The learned Counsel for the petitioners submitted that notwithstanding the other contentions raised in the bail applications, the petitioners have been in judicial custody for the last one year and seven months. However, the trial in the case has not been commenced. Therefore, the petitioners are entitled to the benefit of the law laid down by the Honourable Supreme Court in Ankur Chaudhary v. State of Madhya Pradesh[2024 KHC 8248] and Nitish Adhikary @ Bapan v. The State of West Bengal [SLA (Crl.)No5769/2022], wherein the Supreme Court has held that if the accused is undergoing custody for one year and seven months and the trial in the case has not commenced, the accused is entitled to be enlarged on bail. The petitioners are entitled to the benefit of the said orders. Therefore, the applications may be allowed.

5. The learned Public Prosecutors seriously opposed the applications. They submitted that since the contraband involved in the case is of a commercial quantity, the rigour under Section 37 of the Act applies to the facts of the case. Therefore, the applications may be dismissed.

6. In Ankur Chaudhary’s case (supra), the Hon'ble Supreme Court, on considering that the accused in the said case was in judicial custody for nearly two years for allegedly committing an offence under the NDPS Act and that trial had not commenced, held that the prolonged incarceration of an accused militates against the accused’s precious fundamental right guaranteed under Article 21 of the Constitution of India. Therefore, the conditional liberty overrides the statutory embargo created under Section 37(1)(b) of the NDPS Act. Accordingly, the Hon'ble Supreme Court enlarged the petitioner in the said case on bail.

7. Similarly, in Nitish Adhikary @ Bapan's case (supra) has observed as follows:-

“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.”

8. When the applications came up for consideration on 15.01.2025, this Court had called for