Kerala High Court
Ashkar vs State Of Kerala on 9 April, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BA No.4960 of 2025
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2025:KER:30718
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
BAIL APPL. NO. 4960 OF 2025
CRIME NO.209/2025 OF Cumbummettu Police Station, Idukki
PETITIONER(S)/ACCUSED:
ASHKAR
AGED 24 YEARS, S/O ABDUL KHADER KAMBI VALAPPU
HOUSE VANDANAM ALAPPUZHA, PIN - 688 005
BY ADVS.
SHYAM KUMAR M.P
MUHAMMED NAZIM K.S.
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031
BY ADV.:
SR PP - NOUSHAD K A
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BA No.4960 of 2025
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P.V.KUNHIKRISHNAN, J.
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BA No.4960 of 2025
--------------------------------------------
Dated this the 09th day of April, 2025
ORDER
This Bail Application is filed under Section
483 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023.
2. The petitioner is an accused in Crime
No.209/2025 of Cumbummettu Police Station,
Idukki. The above case is registered against the
petitioner alleging offence punishable under
Section 20(b)(ii)B of the Narcotic Drugs and
Psychotropic Substance (NDPS) Act, 1985.
3. The prosecution case is that, on
10.03.2025, the accused was found in possession
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of 105 gms of Hashish oil. Hence, it is alleged
that the accused committed the offence. The
petitioner was arrested on 10.03.2025.
4. Heard the learned counsel appearing for
the petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner submitted
that the petitioner is in custody from 10.03.2025.
The counsel also submitted that the petitioner is
ready to abide any condition imposed by this
Court, if this Court grants him bail.
6. The Public Prosecutor opposed the bail
application. But, the Public Prosecutor submitted
that, as per the report received by him from the
Investigating Officer, no criminal antecedents is
alleged against the petitioner.
7. This Court considered the contentions of
the petitioner and the Public Prosecutor. It is true
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that the allegations against the petitioner is
serious. But, the contraband seized from the
petitioner is an intermediate quantity. If that be
the case, the rigour under Section 37 of the NDPS
Act is not attracted. Moreover, the petitioner is in
custody from 10.03.2025. Considering the facts
and circumstances of the case and also
considering the period of detention, I think, bail
can be granted to the petitioner on stringent
conditions. But, I make it clear that, if the
petitioner is involved in any similar offence in
future, the Investigating Officer is free to file an
application before the jurisdictional court to
cancel the bail and if such an application is filed,
the jurisdictional court is free to pass appropriate
orders in it, in accordance with law, even though
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this 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
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Court and the High Court did not
consider 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
guaranteed under Art.21 of our
Constitution." (underline supplied)
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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 and jail is exception"."
Considering the dictum laid down in the
above decisions and considering the facts and
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circumstances of this case, this Bail Application is
allowed with the following conditions:
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
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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.
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. The observations and findings in
this order is only for the purpose of
deciding this bail application. The
principle laid down by this Court in
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Anzar Azeez v. State of Kerala
[2025 SCC OnLine KER 1260] is
applicable in this case also.
6. If any of the above conditions are
violated by the petitioner, the
jurisdictional Court can cancel the
bail in accordance with law, even
though the bail is granted by this
Court. The prosecution is at liberty
to approach the jurisdictional court
to cancel the bail, if there is any
violation of the above condition.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
