Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 BAIL APPL. NO. 4182 OF 2025 CRIME NO.1090/2024 OF BEKAL POLICE STATION, KASARGOD AGAINST THE ORDER IN BAIL APPL. NO.3753 OF 2025 OF HIGH COURT OF KERALA PETITIONER/ACCUSED: ABDUL SHAREEF.K AGED 28 YEARS S/O.SHAFI, MANHANADUKKAM, KOLATHUR, KOLATHUR VILLAGE, KASARAGOD., PIN - 671541 BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR SACHIN GEORGE ARAMBAN NESILI NAZEER RESPONDENTS/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP- HRITHWIK C S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4182 OF 2025 2 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.4182 of 2025 ------------------------------- Dated this the 28th day of March, 2025
ORDER
This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime No.1090
of 2024 of Bekal Police Station, Kasargod. The above case is registered against the petitioner alleging offences punishable under Sections 22(b) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985( for short ‘NDPS Act’).
3. The prosecution case is that, on 26.12.2024
at 11:10 a.m, the petitioner along with the 2 nd accused were found in possession of 2.790 grams of MDMA in a car for illicit sale. Hence it is alleged that the accused committed the offence.
4. Heard counsel for the petitioner and the Public Prosecutor. BAIL APPL. NO. 4182 OF 2025 3
5. Counsel for the petitioner submitted that the
petitioner is in custody from 26.12.2024 and the co-accused is already released on bail. The counsel for the petitioner submitted that the petitioner is ready to abide by any conditions, if this Court grants him bail.
6. Public Prosecutor opposed the bail
application. But, he conceded that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioner. It is also submitted by the Public Prosecutor that the Final Report is already filed.
7. This Court considered the contention of the
petitioner and the Public Prosecutor. It is true that allegation against the petitioner is serious. But, the quantity of contra band seized is only intermediate quantity. Hence, the rigour under Section 37 of the NDPS Act is not applicable. The petitioner is in custody from 26.12.2024. No criminal antecedent is alleged against the petitioner. In the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. But, I
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make it clear that, if the petitioner is involved in similar offence in future, the Investigating Officer is free to file appropriate application before the Jurisdictional Court to cancel the bail, and if such an application is filed the Jurisdictional Court can pass appropriate orders, even though this bail order is passed by this Court.
8. Moreover, it is a well accepted principle that
the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870], after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
9. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider BAIL APPL. NO. 4182 OF 2025 5
the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights
BAIL APPL. NO. 4182 OF 2025 6 guaranteed under Art.21 of our Constitution.” (underline supplied)
10. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that:
“53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule
BAIL APPL. NO. 4182 OF 2025 7 and jail is exception". Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:
1. Petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and when required. The petitioner shall co- operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
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3. Petitioner shall not leave India without permission of the jurisdictional Court.
4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. If any of the above conditions are
violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions.
Sd/- P.V.KUNHIKRISHNAN JUDGE MSA BAIL APPL. NO. 4182 OF 2025 9 APPENDIX OF BAIL APPL. 4182/2025 PETITIONER ANNEXURES Annexure AI A TRUE COPY OF THE ORDER DATED 14-01- 2025 IN CRIMINAL M.C.NO.29 OF 2025 OF COURT OF SESSIONS, KASARAGOD Annexure AII A TRUE COPY OF THE ORDER DATED 10-03- 2025 IN CRIMINAL M.C.NO.331 OF 2025 OF COURT OF SESSIONS, KASARAGOD