Kerala High Court

Tom Thomas vs State Of Kerala on 23 October, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

   WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946

                     BAIL APPL. NO. 8402 OF 2024

     CRIME NO.1128/2022 OF KOLLAM EAST POLICE STATION, KOLLAM

PETITIONER/1ST ACCUSED:

            TOM THOMAS
            AGED 27 YEARS
            S/O.THOMAS, RESIDING AT KARTHIKA HOUSE, KANNANALLOOR
            P.O, KANNANALLOR CHERRY, THAZHUTHAL VILLAGE, KOLLAM,
            PIN - 691576

            BY ADVS.
            S.SREEKUMAR (KOLLAM)
            NAMITHA RAJESH


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682031

    2       THE STATION HOUSE OFFICER
            KOLLAM EAST POLICE STATION REPRESENTED BY THE PUBLIC
            PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, PIN -
            682031


            BY ADV
            ADV VENUGOPAL V. - PUBLIC PROSECUTOR


     THIS   BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
23.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                   2024:KER:78725
BAIL APPL. NO. 8402 OF 2024

                                 2


                             ORDER

The petitioner is the 1st accused in Crime No.1128/2022 of

Kollam East Police Station, Kollam, which is now pending as S.C.

No.563/2023 before the II Addl. Sessions Court, Kollam. The

offences alleged against the petitioner are under Sections 22(c),

27A, 29 and 20(b)(ii)A of the NDPS Act.

2. The prosecution case is that, on 31.10.2022 at about

11.30 a.m., the petitioner was found in possession of 57.716 gms

of Methamphetamine. The petitioner was arrested and the

contraband articles were seized on the same day. Since then, the

petitioner has been in judicial custody. Even though the petitioner

approached this Court seeking regular bail on three occasions, all

the said applications were rejected. This application is submitted

by the petitioner in such circumstances.

3. Heard Sri.S. Sreekumar (Kollam), learned Counsel for

the petitioner and Sri.Venugopal V., learned Public Prosecutor for 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

the State.

4. The learned Counsel for the petitioner points out that,

the petitioner has been in judicial custody since 31.10.2022 and

as of now, about two years have been elapsed. Besides, the

learned Counsel for the petitioner further pointed out that, the

petitioner is undergoing treatment for T.B. and for liver disease.

Therefore, for ensuring proper treatment release of the petitioner

on bail is necessary.

5. When the matter came up for consideration on the last

occasion, a report was called for from the Superintendent of

District Jail, with regard to the health condition of the petitioner

and today when the matter came up for consideration the said

report was made available by the learned Public Prosecutor. On

going through the report, it is seen that, the petitioner is indeed

undergoing treatment for T.B. and liver disease and he requires

continuous treatment.

6. After considering all the relevant aspects, I am of the view 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

that, taking note of the period of incarceration already undergone

by the petitioner, which extends to about two years and also the

health condition of the petitioner, a lenient view can be taken,

even though the quantity involved is commercial in nature. It is

true that the petitioner was involved in another case registered for

the offence punishable under Section 20(b)(ii) of NDPS Act.

However, It is also discernible from the records that, the trial is

not likely to take place in near future.

7. In Javed Gulam Nabi Shaikh's case (supra), after referring

to a series of decisions, including, Union of India v K.A.Najeeb

[(2021) 3 SCC 713], Satendar Kumar Antil v CBI [(2022) 10

SCC 51], Hussainara Khatoon v. Home Secretary, State of

Bihar [(1980) 1 SCC 81), it was observed by the Honourable

Supreme Court in para 19 and 20 as follows:

"19.If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20.We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be."

That was a case involving provisions of the Unlawful Activities

(Prevention) Act, 1967 (UAPA) where special conditions are

stipulated for granting bail.

8. Manish Sisodia's case (supra), was registered under the

provisions of the Prevention of Money Laundering Act,

2002(PMLA), where section 45 contemplated dual conditions for

bail. In the said decision, the following observations were made by

the Honourable Supreme Court at para. 53 as follows:

"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 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

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 and jail is exception"."

9. In Prem Prakash's case (supra), after referring to section 45

of the PMLA, the following observations are made at para 11:

"............

All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is the rule and jail is the exception" is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied."

10. In Aravind Kejriwals' case (supra), in paras 38, 39 and

40 of the concurring judgment, it was observed as follows:

"38. This Court in Gudikanti Narasimhulu v. Public Prosecutor, had highlighted that bail is not to be withheld as a punishment. The requirement as to bail is merely to secure the attendance of the prisoner at trial. This Court in Manish Sisodia referred to and relied upon the aforesaid decision and reiterated the salutary principle that bail is the rule and jail is the exception. This Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts. It has been held as under:

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 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

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 and jail is exception".

39. Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and jail is the exception. As such, the courts at all levels must ensure that the process leading to and including the trial does not end up becoming the punishment itself.

40. This Court has emphasized and re-emphasized time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution."

In such circumstances, taking note of the all the relevant

aspects, I am of the view that, the petitioner can be released on

bail. In the result, the application is allowed on the following

conditions:-

2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

i) The 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.

ii) The petitioner shall appear before the trial court as

and when required.

iii) The petitioner shall not commit any offence of similar

nature while on bail.

iv) The petitioner shall not make any attempt to contact

any of the prosecution witnesses, directly or through any other

person, or any other way try to tamper with the evidence or

influence any witnesses or other persons related to the

investigation.

v) The petitioner shall not leave India without the

permission of the jurisdictional court.

vi) The petitioner shall surrender his passport before the 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

Jurisdictional court and, in case, he does not have a passport, an

affidavit to that effect shall be filed.

In case of violation of any of the above conditions, the

jurisdictional Court shall be empowered to consider the application

for cancellation of bail, if any, and pass appropriate orders in

accordance with the law.

Sd/-

ZIYAD RAHMAN A.A. JUDGE

SCS/pkk 2024:KER:78725 BAIL APPL. NO. 8402 OF 2024

APPENDIX OF BAIL APPL. 8402/2024

PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE F.I.R IN CRIME NO.

1128/2022 OF THE KOLLAM EAST POLICE STATION DATED 31.10.2022

Annexure A2 THE TRUE COPY OF THE FSL REPORT