The Kerala High Court observed that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) does not lay down stipulation that the accused is entitled for a bail if the trial does not commence within a particular period.

The Court held thus in a bail application filed by an accused against whom a case was registered for the offence punishable under Section 22(c) of NDPS Act and he was arrested.

A Single Bench of Justice C.S. Dias observed, “It is based on the above observation made in Fasil's case, the learned Counsel for the petitioner contended that since the petitioner in the instant case has been in judicial custody for the past fourteen months, is not a history-sheeter and the trial has not commenced, the petitioner is entitled to be enlarged on bail. … I am unable to accept the above submission for more reasons than one. Firstly, Section 37 of the Act does not lay down any stipulation that the accused is entitled to be released on bail if the trial does not commence within a particular period. Secondly, Fasil’s case was rendered in the peculiar facts and circumstances of that case.”

The Bench added that there cannot be any rule of thumb or principle of universal application, dehors the procedure prescribed in the statute, laying down the time-period within which the trial is to commence and be concluded.

Advocate Sam Isaac Pothiyil appeared for the petitioner while Public Prosecutor C.S. Hrithwik appeared for the respondents.

In this case, in the year 2022, the accused were found in possession of 298.10 grams of methamphetamine in a care on the Iritty Koottupuzha bridge while transporting the contraband from the State of Karnataka to Kerala. The counsel for the accused argued that he was innocent of the accusation levelled against him and that he was falsely implicated in the crime. He was in incarceration since December 7, 2022 and the investigation in the case was completed. The counsel also relied upon the case of Fasil v. State of Kerala [2023 (3) KHC 212].

The High Court in the above context of the case noted, “In Fasil’s case, the accused was in custody for one year and 45 days. Accordingly, this court, applying the principles in the above-cited three decisions of the Honourable Supreme Court, has ordered the accused to be released on bail because (i) he had no criminal antecedents (ii) he was in custody for one year and (iii) there was no likelihood of the trial commencing. … it is trite that courts cannot read into a statute any additional grounds which are conspicuously absent.”

The Court further said that there are several procedural formalities and prescriptions that must be complied with before the trial under the Act can commence and it is with this objective in mind that the Parliament has incorporated Section 36A in the Act, giving an extended period for completing the investigation and laying final reports for the offences committed under the Act.

“… the court has to be satisfied that the accused has fulfilled the twin conditions under Section 37 of the Act, in addition to the conditions under Section 439 of the Code before granting an order of bail and lastly but most importantly, when individual liberty is pitted against larger public interest, it is the latter that must prevail over the former”, it added.

The Court concluded that there are no reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that there is likelihood of him committing any offence if released on bail.

“I do not find any compelling or cogent grounds to dilute the rigour under Section 37 of the Act. The application lacks merits and is only to be dismissed”, it observed.

Accordingly, the High Court dismissed the bail application.

Cause Title- Jaseer S.M. v. State of Kerala & Anr. (Neutral Citation: 2024:KER:1320)

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