High Court of KeralaSingle Judge2024-03-27Bail granted to petitioner on stringent conditi...

Unnikuttan @ Vishnu v. State of Kerala

Case / Petition Number:BA No. 11624 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: VIJU ABRAHAM
Judgment Date: 2024-03-27
Court Decision / Holding: The bail application is allowed. The petitioner is to be released on bail subject to stringent conditions including: (i) bond of Rs.1,00,000 with two solvent sureties; (ii) appearance before the investigating officer on all second Saturdays at 11:00 a.m. until investigation is complete; (iii) regular appearance in the trial court on posting dates; (iv) surrender of passport or affidavit if none; (v) restriction on leaving Kerala without court permission; (vi) no interference with investigations or coercing witnesses; (vii) no involvement in other crimes while on bail. Violating any condition permits cancellation of bail.
Final Disposition: Bail granted to petitioner on stringent conditions; subject to compliance with specified conditions and potential cancellation on violation.

Parties to the Case

Appellants / Petitioners

Unnikuttan @ Vishnu, aged 26 years, S/o Suresh, Kollakkalmeethan(H) Narikkuni Desam, Parannur Village, Kozhikode District, PIN-673585

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Francis Assisi Ajeesh
• S. Brite Amrutha P S

Counsels for Respondents

• P. Narayanan, Advocate General Office Kerala, Director General of Prosecution (AG-10)
• Shri Sajju S., Senior G.P.

Case Synopsis & Summary

This is a bail application filed by the 19th accused in Crime No.36/2021 of the Excise Range Office, Ernakulam, under sections 22(C), 25, 27 and 29 of the NDPS Act, 1985. The petitioner, Unnikuttan @ Vishnu, contends that he has been falsely implicated, had only a financial relationship with other accused, and has been in custody since 6 November 2021. The prosecution alleges involvement in a serious NDPS offence with MDMA seized from a Marhaba Apartment, Ernakulam, and claims the applicant played an active role; the plea highlights the oral suggestion that the contraband appeared as MDMA initially but chemical analysis showed Methamphetamine hydrochloride. The court notes that several co-accused, including those charged in the same crime, have been granted bail; the matter is heavily fact-specific and not yet concluded by trial. The judgment discusses constitutional rights under Article 21 and recent Supreme Court rulings emphasizing that prolonged incarceration cannot be allowed to override liberty, especially where delays and the nature of charges justify judicial discretion. After considering delay, custody, similarities with other bail orders, and the gravity of the offence, the court grants bail to the petitioner under stringent conditions, balancing the state’s interest with the accused’s fundamental right to liberty.

Provisions of Law Cited

Section 22(C) of Narcotic Drugs and Psychotropic Substances Act, 1985Section 25Section 27Section 29Section 37 of NDPS Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends false implication in the NDPS case, maintaining a limited role with alleged involvement in financial transactions with other accused. He asserts prolonged custody since 06.11.2021 and disputes the initial classification of contraband as MDMA, noting later chemical analysis as Methamphetamine hydrochloride. He points to bail-bench parallels where co-accused were granted bail and invokes exceptions arising from undue delay in trial, arguing that liberty should not be unduly sacrificed where trial is pending, with the court urged to consider stringent conditions rather than outright denial of bail.

Contentions of Respondents

The Public Prosecutor opposes bail on grounds of active participation and the accused’s involvement in other NDPS-related cases; the case involves a serious offence under the NDPS Act, with custody spanning a protracted period and trial yet to commence. The prosecution emphasizes the gravity of the allegations, ongoing investigations, and risk of interference or witness tampering, arguing that statutory bar under Section 37 NDPS Act should be treated with caution in the context of delay and liberty considerations.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mohd. Muslim @ Hussain v. State (NCT of Delhi)	2023 SCC Online SC 352	Positive	Used to support the proposition that bail on ground of undue delay in trial is not strictly fettered by Section 37 of the NDPS Act.
Rabi Prakash v. The State of Odisha	SLP Crl. No. 4169 of 2023	Positive	Reiterates that prolonged incarceration impacts Article 21 rights and that conditional liberty can override Section 37 constraints in appropriate circumstances.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946** **BAIL APPL. NO. 11624 OF 2023** **CRIME NO.36/2021 OF Ernakulam Excise Range Office, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED IN SC NO.378 OF 2022 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM PETITIONER:** **UNNIKUTTAN @VISHNU AGED 26 YEARS S/O SURESH, KOLLAKKALMEETHAN(H) NARIKKUNI DESAM, PARANNUR VILLAGE KOZIKKODE DISTRICT, PIN - 673585** **BY ADVS. FRANCIS ASSISI AJEESH S.BRITE AMRUTHA P S** ## **RESPONDENTS:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA DIRECTOR GENERAL OF PROSECUTION(AG-10) SHRI.P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P. () SHRI.SAJJU.S., SENIOR G.P.()** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A. No. 11624 of 2023 2** ## **VIJU ABRAHAM, J.** **------------------B.A. No. 11624 of 2023** **--------------------------Dated this the 27[th] day of March, 2024** ## **ORDER** This bail application is placed before me as per the direction issued by another learned Single Judge of this Court who heard the matter earlier as the bail application in respect of accused Nos.10 and 21 was heard by this Court. 2. Petitioner is the 19[th ] accused in CR No.36 of 2021 of Excise Range Office, Ernakulam alleging commission of offences punishable under Sections 22(C), 25, 27 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution allegation is that, on 19.8.2021 at about 1.40 A.M the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam acting on a tip off conducted a search in Marhaba Apartment, Vazhakala at Ernakulam and seized 83.896 grams of MDMA illegally kept for sale in an apartment in the 1[st] floor of C block and arrested accused Nos.1 to 5. Later, upon further ## **B.A. No. 11624 of 2023 3** investigation role of the other accused persons were revealed and subsequently all others were arrested. 4. Petitioner submits that he has been falsely implicated in the above said crime and the only allegation against the petitioner is that he had some illegal financial transaction with the other accused. Petitioner further submits that he is in custody from 6.11.2021 onwards. He also submits that though the alleged contraband is MDMA, later on chemical analysis the same was found to be Methamphetamine hydrochloride. Petitioner also submits that accused No.15 in the above said crime has been granted bail by the Apex Court, whereas accused Nos.4, 7, 9, 10, 13, 14, 18, 20, 21 and 23 were granted bail by this Court. 5. The learned Public Prosecutor opposed the application for bail mainly contending that the petitioner has an active role in the commission of the offence and further submits that he is involved in three other criminal cases, including 2 NDPS cases involving small and intermediate ## **B.A. No. 11624 of 2023 4** quantity. 6. Admittedly, the petitioner is in custody from 06.11.2021 onwards and the trial of the case is not yet completed. The Apex Court in **Mohd. Muslim** ## **@ Hussain v. State (NCT of Delhi) [2023 SCC online** **SC 352]** has held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex Court in **Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of 2023)** has also reiterated that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act. Taking into consideration the fact that the petitioner is in custody from 6.11.2021 and that accused Nos. 4, 7, 9, 10, 13, 14, 15, 18, 20, 21 and 23 were granted bail and the trial of the case is not yet completed, I am inclined to grant bail to the petitioner, but taking into consideration ## **B.A. No. 11624 of 2023 5** the seriousness of the allegation, the same shall only be on stringent conditions. _(i) Petitioner shall execute a bond for a sum of Rs.1,00,000/- (rupees one lakh only) with two solvent sureties each for the likesum to the satisfaction of the jurisdictional court;_ _(ii) Petitioner shall appear before the investigating officer in CR No.36 of 2021 of Excise Range Office, Ernakulam on all 2[nd] Saturdays at 11.00 a.m. till completion of the investigation._ _(iii) Petitioner shall appear before the trial court on all posting dates without fail, except specifically exempted by the court._ _(iv) Petitioner shall surrender his passport before the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail._ _(v) Petitioner shall not leave the State of Kerala without obtaining prior permission from the jurisdictional Court._ _(vi) Petitioner shall not attempt to interfere with the investigation or to influence any witness in the above said crime._ _(vii) Petitioner shall not involve in any other crime while on bail._ **B.A. No. 11624 of 2023 6** If any of the above said conditions are violated, the investigating officer in CR No.36 of 2021 of Excise Range Office, Ernakulam may file an application before the jurisdictional court for cancellation of bail. sd/- **VIJU ABRAHAM,JUDGE** pm **B.A. No. 11624 of 2023 7** ## **APPENDIX OF BAIL APPL. 11624/2023** ## **PETITIONER'S ANNEXURES** **Annexure -I Annexure -II** **A TRUE COPY OF THE CHEMICAL EXAMINER'S LABORATORY REPORTS DATED 18.09.2021 AND 07.12.2021 ISSUED BY THE CHEMICAL EXAMINER'S LABORATORY DEPARTMENT** **A TRUE COPY OF THE RELEVANT PAGES OF THE FINAL REPORT IN CRIME NO. 36/2021 OF EXCISE RANGE OFFICE, ERNAKUALM** 6 Admittedly, the petitioner is in custody from 25.04.2022 onwards and the final report is already laid. The trial of the case is not yet completed. The 2nd accused is already granted bail as per the Annexure A2 order. The Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC online SC 352] has held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act. The Apex Court in Rabi Prakash v. The State of Odisha, (SLP Crl. No. 4169 of 2023) has also reiterated that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo under ## **B.A. No. 11624 of 2023 8** Section 37 of the NDPS Act. Considering the fact that the petitioner is in custody from 25.04.2022 onwards, I am inclined to grant bail to the petitioner, but taking into consideration the seriousness of the allegation, the same shall only be on stringent conditions. In the result, the bail application is allowed and it is ordered that the petitioner shall be released on bail on the following stringent conditions: - (i) Petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court. - (ii) He shall appear before the investigating officer in Crime No.5 of 2021 of Kattakada Excise Range Office, Thiruvananthapuram on all second Saturdays at 11.00 a.m. till completion of the trial. (iii) He shall appear before the trial court on all posting dates without fail, except specifically exempted by the court. **B.A. No. 11624 of 2023 9** (iv) He shall not leave the State of Kerala without obtaining prior permission from the jurisdictional Court. (v) He shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail; (vi) He shall not attempt to interfere with the investigation or to influence any witness in the above said crime; (vii) He shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.5 of 2021 of Kattakada Excise Range Office, Thiruvananthapuram may file an application before the jurisdictional court, for cancellation of bail.