Application for regular bail dismissed as the trial court reported ability to conclude the trial within the mandatory six-month period, rendering the Fasil parameters inapplicable.
Bail application dismissed; directed Sessions Court to dispose case within six months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 7TH DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945
BAIL APPL. NO. 10192 OF 2023
CRIME NO.905/2022 OF ANGAMALY POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED NO.2:
MUHAMMED AFZAL
AGED 26 YEARS
S/O. MUHAMMAD ALI, PUTHENPURAYIL (H) NJATTAPADOM,
ALANGAD P.O ERNAKULAM, PIN - 683511
BY ADVS.
AMRUTHA P S
FRANCIS ASSISI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY SR.PUBLIC PROSECUTOR SRI.K.DENNY DEVASSY
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 10192 OF 2023 2
ORDER
Dated this the 7th day of December, 2023
This is the second bail application for regular bail, filed by the petitioner, who is the 2nd accused in Crime No.905/2022 of Angamaly Police Station, Ernakulam, now pending as S.C.No.184/2023 on the files of the Sessions Court (Additional District and Sessions Court – II), North Paravur.
BAIL APPL. NO. 10192 OF 2023 3
alleging commission of offences punishable under Sections 22(c), 22(b), 20(b)(ii)(A), 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), was registered.
BAIL APPL. NO. 10192 OF 2023 4
documents to connect the 2nd and 3rd accused also in this regard, since they had entrusted money with the 1st accused to purchase the contraband seized from the possession of the 1st accused. According to the learned Public Prosecutor, all accused in this case, are in custody and therefore, trial, involving huge quantity of contraband may be expedited and the trial of this case can be expedited within a period of 6 months.
“S.C.No.184/2023 was posted to 12/12/2023 for framing of charges. As per reference No.3 above, this court had already sent a report on time required to dispose the case. Considering the report of this court, the Hon'ble High Court, in the bail application No.9141/2023 preferred by 3rd accused vide order dated 13/11/2023, directed this court to dispose the case within 6 months from the date of receipt of copy of the order. It is also submitted that all the accused in this case are in custody. This court is ready to dispose the case as directed in reference No.2, by the Hon'ble High
BAIL APPL. NO. 10192 OF 2023 5
Court.”
[2023 (3) KHC 212], this Court held as under:
“Epitomizing the parameters laid down by the Apex Court in the decisions herein above discussed, the following parameters clubbed together can be considered to dilute the rigour under Section 37 of the NDPS Act: (1) the accused should not have any criminal antecedents. (2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case). (3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months). Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something just above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act.”
The ratio in the said decision would apply only cases where trial
could not be materialized within a period of 6 months.
In the case at hand, the learned Special Judge readily agreed
BAIL APPL. NO. 10192 OF 2023 6
to dispose of the case, within a period of 6 months in view of the direction issued by this Court when bail application at the instance of the 3rd accused was considered. Therefore, the ratio in Fasil ’s case (supra) could not be applied in the facts of this case. Accordingly, this bail application stands dismissed, directing the learned Special Judge, to dispose of S.C.No.184/2023 on the files of the Sessions Court (Additional District and Sessions Court – II), North Paravur, within a period of 6 months in obedience to the
earlier order.
Sd/- A. BADHARUDEEN JUDGE
Bb
2 issues framed by the court
Whether bail can be granted under the parameters laid down in Fasil v. State of Kerala when the trial court is ready to dispose the case within six months.
Whether the rigour under Section 37 of the NDPS Act should be diluted in commercial quantity cases where the trial duration is likely to be short.
Colour shows how this judgement treated each authority
Fasil v. State of KeralaDistinguished¶33
Fasil v. State of Kerala, reported in [2023 (3) KHC 212]
MUHAMMED AFZAL
STATE OF KERALA
A BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court