IMPORTANT POINT
Bail is the rule and jail is the exception; prolonged detention without trial can justify bail even under stringent statutory conditions.

ORDER :

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

2. Petitioner is the 2^nd accused in Crime No.907/2023 of Angamaly Police Station. The above case is registered against the petitioner and another alleging offences punishable under Sections 8, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Petitioner was arrested on 07.09.2023.

3. The prosecution case is that, on 07.09.2023 at about 00.15 hours, the accused Nos. 1 and 2 were found in possession of 147 gms of MDMA, which was kept beneath the music system of a motor car. Hence, it is alleged that the accused committed the offences.

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

5. The petitioner earlier filed a bail application before this Court as BA No. 2677/2025. That application was disposed by this Court with following directions :

“1. The petitioner is free to file a bail application before the Jurisdictional Court within two weeks raising all the contentions raised in this bail application.

2. If such a bail application is received, the Jurisdictional Court will consider the same and pass appropriate orders in it, in the light of the principle laid down by 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], Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] and also the principle laid down by this Court in Shuaib A.S v. State of Kerala [2025 SCC Online 618], within two weeks from the date of receipt of the application.”

6. Now, as per Annexure-7, the jurisdictional court dismissed the petition. I am not satisfied the way in which the Addl. Sessions Judge -II/In charge of Addl. District & Sessions Judge-I considered the bail application, when there is a specific direction from this Court to consider the bail application, in the light of the judgments of the Apex Court. This Court issued such a direction keeping in mind the right of a citizen under Article 21 of the Constitution of India. The personal liberty is above everything.

7. In Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416] 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 and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] 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 @ Bapan v. The State of West Bengal [SLP to Appeal (Crl.) No.5769 of 2022], 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. Based on the above judgments, this Court directed to consider the bail application. Now, the learned Judge disposed the bail application as per Annexure-7, mainly with following reasoning.

“In all the precedents discussed, prolonged detention of the accused was a key factor. Additionally, to determine whether Section 37 of the NDPS Act can be diluted in cases involving commercial quantity, the Hon'ble Apex Court has considered factor