Kerala High Court
Aswanth vs State Of Kerala on 5 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:9351
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
BAIL APPL. NO. 1459 OF 2025
CRIME NO.2/2025 OF Vatanappilly Excise Range Office, Thrissur
PETITIONER/S:
ASWANTH
AGED 26 YEARS
DAMAYANTI, TALIPARAM VILLAGE. TALIPARAMB TALUK, KANNUR.
THRISSUR DISTRICT.PIN. NOW RESIDING AT ASHOKAN'S HOUSE
AT CHAVAKKAD TALUK, VALAPAD VILLAGE, PIN - 670141
BY ADVS.
D.VIMAL DEV
GIFFIN SHALOO
SNEHAPRABHA
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
B YADV.
NOUSHAD.K.A, SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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BAIL APPL. NO.1459 OF 2025
2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.1459 of 2025
-------------------------------
Dated this the 05th day of February, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita (BNSS).
2. Petitioner is an accused in Crime No.2/2025 of
Vatanappilly Excise Range, Thrissur, registered alleging
offences punishable under Section 22(b) of the Narcotic Drugs
and Psychotropic Substances Act (NDPS Act).
3. The prosecution case is that, on 6.01.2025 at
12:20 hours, the accused was found in possession with .51
grams of MDMA. Petitioner was arrested on 06.01.2025.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that
the petitioner is in custody from 06.01.2025. The counsel
submitted that, the petitioner is ready to abide by any
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conditions, if this Court grants him bail.
6. Public Prosecutor opposed the bail
application. He submitted that, petitioner is involved in two
other criminal cases. But, the Public Prosecutor submitted
that, those cases are registered not under the provisions of
NDPS Act, but, for IPC offences.
7. This Court considered the contention of the
petitioner and the Public Prosecutor. Admittedly, the
contraband seized is intermediate quantity of MDMA.
Therefore, the rigor under 37 of the NDPS Act is not
applicable. The petitioner is in custody from 06.01.2025. No
criminal antecedents of NDPS cases are alleged against the
petitioner. Considering the facts and circumstances of the
case, I think the petitioner can be released on bail after
imposing stringent conditions. But, I make it clear that, if the
petitioner involved in similar offences in future, the
Investigating Officer in this case can file appropriate
application for the cancellation of bail before the Jurisdictional
Court, and if such an application is filed, Jurisdictional Court
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can pass appropriate order eventhough, this order is passed
in it, 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 the
material in the charge sheet objectively.
Perhaps the focus was more on the
activities of PFI, and therefore, the
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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
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principle that "bail is rule 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.50,000/- (Rupees
Fifty Thousand 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
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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. 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
SSG
