Kerala High Court
Fasil vs State Of Kerala on 5 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:9116
BAIL APPL. NO. 1437 OF 2025
1
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. 1437 OF 2025
CRIME NO.976/2024 OF Wandoor Police Station, Malappuram
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.369 OF
2025 OF HIGH COURT OF KERALA
PETITIONER/S:
FASIL
AGED 26 YEARS
S/O.SIDDEQE, KOTTAYI HOUSE, VADAPURAM,
NILAMBUR, MALAPPURAM DISTRICT, PIN - 676542
BY ADV P.C.MUHAMMED NOUSHIQ
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SRI NOUSHAD KA, 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. 1437 OF 2025
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A. No.1437 of 2025
----------------------------------------------
Dated this the 05th day of February, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime
No.976/2024 of Wandoor Police Station, Malappuram. The
above case is registered against the petitioner alleging
offences punishable under Section 22(b) of the Narcotic Drugs
and Psychotropic Substances Act (for short, NDPS Act).
3. The prosecution case is that, on 02.12.2024 at
9.40 pm, the petitioner was found in possession of 9.50 grams
of MDMA.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that
the petitioner has not committed any offence and the petitioner
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is ready to abide any conditions if this Court grant him bail.
The counsel submitted that the petitioner is in custody from
02.12.2024. The Public Prosecutor opposed the bail
application and submitted that the petitioner has criminal
antecedents.
6. The petitioner earlier moved BA No.369/2025 before
this Court. This Court, after hearing the counsel for the
petitioner and the Public Prosecutor, was not inclined to grant
bail because the petitioner has criminal antecedents. At that
stage, the counsel for the petitioner sought permission to
withdraw the bail application with liberty to move it again.
Accordingly that bail application was dismissed as withdrawn
with liberty to move a fresh bail application after two weeks.
Accordingly the present bail application is filed.
7. Now the Public Prosecutor submitted that the
final report is already filed. Admittedly the quantity seized is
intermediate quantity. Hence the rigour under Section 37 of
the NDPS Act is not attracted. The petitioner is in custody
from 02.12.2024.
8. Moreover, it is a well accepted principle that
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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 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
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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)
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
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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"."
10. Considering the dictum laid down in the above
decision and considering the facts and circumstances of the
case, I think the petitioner can be released on bail on condition
that if the petitioner is involved in similar offence in future, the
Investigating Officer is free to file appropriate application for
cancellation of bail and if such an application is received, the
jurisdictional court can pass appropriate orders in that
application even though this order is passed by this Court.
Therefore, 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. Petitioner shall appear before the
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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/her 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
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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
jv
