[NDPS Act] Registration Of Second Crime Need Not Automatically Result In Cancellation Of Bail, Court Must Undertake Summary Enquiry: Kerala HC

One of the conditions imposed on the accused while granting bail was that he should not commit any crime while on bail. The Special Court cancelled the bail noting that the accused was involved in another crime and violated the bail condition. The accused challenged this order saying that the special court cancelled the bail mechanically.

Justice P. G. Ajithkumar accepted this argument and set aside the order noting that in the order there was not even a subjective satisfaction that the accused had prima facie committed the subsequent offence. The High Court observed that since this was a matter concerning the personal liberty of the person, the court should have undertaken a summary enquiry first.

“As rightly pointed out by the learned counsel for the petitioner, the order of the Special Court, relevant part has been extracted above, does not contain even a subjective satisfaction that the petitioner has prima facie committed the second offence. Registration of second crime ipso facto need not result in cancellation of bail. Of course, the condition is that the petitioner should not involve in any other crime while on bail. Even so, cancellation of bail being something affecting the personal liberty of a person, the court should have undertaken a summary enquiry”

The Court observed that the Special Court should have considered the available materials of the subsequent crime before passing the order. The High Court said that since the Court did not do that, there was no other way than to set aside the order.

In the original case, the petitioner was alleged to possess 3.38 kgs of Ganja and was subsequently given bail. It was alleged that while on bail, the accused committed a similar offence and was caught possessing 11.3 kgs of ganja.

The prosecution pointed out that the petitioner was also involved in several other crimes. The Court however held that his involvement in prior occasions cannot be a criterion for cancelling the bail.

The petitioner had also argued that more than three years have elapsed since the registration of the first crime and the registration of a second crime cannot be a reason to cancel his bail.

The Court said this argument cannot be accepted in the light of the judgment in Muhammed Shibil v State of Kerala and another (2025) considering that both the crimes were under the NDPS Act. In Muhammed Shibil, the Court affirmed the cancellation of bail of an accused alleged of committing a crime under the NDPS Act for being involved in a subsequent NDPS offence after taking into account the fact that under the NDPS Act, stricter punishment is given for repeated offence and there is a strict condition for granting bail under Section 37.

The Court sent the matter to a Special Court for fresh consideration.

Counsel for the Petitioners: Advocates Adithya Rajeev, S. Parvathi

Counsel for the Respondents: Adv. Rekha S. (Sr. PP)

Case No: Crl.MC 970 of 2024

Case Title: Jamsheer Ali v State of Kerala and Another

Citation: 2025 LiveLaw (Ker) 194