Kerala High Court

Jigariya Digal vs State Of Kerala on 14 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

B.A.No.1869 of 2025
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
                       BAIL APPL. NO. 1869 OF 2025
   CRIME NO.1/2025 OF THRIKKAKARA POLICE STATION, ERNAKULAM
PETITIONER(S)/ACCUSED NO.2:

             JIGARIYA DIGAL
             AGED 22 YEARS
             S/O KAPPU DIGAL, BALIGUDA P.O , KANDAMAL ,
             KANDHAMAL, ODISHA , INDIA, PIN - 762103

             BY ADVS.
             VISHNU CHANDRAN
             MUHAMMED NIYAS K.H.
RESPONDENT(S)/COMPLAINANT:

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

             BY ADV.
             SRI.NOUSHAD K.A., SENIOR PP



      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
14.02.2025,      THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 B.A.No.1869 of 2025
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                                                         2025:KER:12342




                  P.V.KUNHIKRISHNAN, J
                --------------------------------
                     B.A.No.1869 of 2025
                 -------------------------------
           Dated this the 14th day of February, 2025


                               ORDER

This Bail Application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.1/2025 of

Thrikkakara Police Station registered alleging offences punishable

under Sections 20(b)(ii)B & 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'NDPS Act').

3. The prosecution case is that the petitioner and

other accused was found in possession of 12.128 Kg. of Ganja.

Hence it is alleged that the accused committed the above said

offence. The petitioner was arrested on 01.01.2025.

4. Heard the learned counsel appearing for the

petitioner and the learned Public Prosecutor.

5. Counsel for the petitioner submitted that the

petitioner is in custody from 01.01.2025. The counsel also

submitted that the petitioner is ready to abide any conditions if this

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Court grant him bail.

6. The Public Prosecutor opposed the bail application

and submitted that the quantity of ganja seized is huge,

eventhough it is intermediate quantity. But the Public Prosecutor,

as per the instructions received by him submitted that, there is no

criminal antecedents to the petitioner. But the Pubic Prosecutor

submitted that the petitioner is from Odisha State and if he is

released on bail, he will not be available for trial. At that stage, the

counsel appearing for the petitioner submitted that the petitioner is

ready to offer local sureties from the State of Kerala. The same is

recorded.

7. This Court considered the contentions of the

petitioner and the Public Public Prosecutor. It is true that the

allegation against the petitioner is very serious. Admittedly, the

quantity of contraband seized from the petitioner is intermediate

quantity. Hence the rigour under Section 37 of the NDPS Act is not

attracted. No criminal antecedents are alleged against the

petitioner. The petitioner is in custody from 01.01.2025.

Considering the facts and circumstance of the case, I think the

petitioner can be released on bail after imposing stringent

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conditions. But I make it clear that, if the petitioner is involved

in similar offences in the future, the Investigating Officer

can file appropriate application before the jurisdictional court to

cancel the bail, and if such an application is received, the

jurisdictional court can cancel the bail, even though 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 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

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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)

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

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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"."

11. 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: