Kerala High Court
Mohasin Ali Mylivalappil vs State Of Kerala on 24 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BA No.2054 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
BAIL APPL. NO. 2054 OF 2025
CRIME NO.2246/2023 OF VANCHIYOOR POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT IN Bail Appl.
NO.9180 OF 2024 OF HIGH COURT OF KERALA
PETITIONER(S)/1ST ACCUSED:
MOHASIN ALI MYLIVALAPPIL
AGED 35 YEARS, S/O.ABDUL SALAM, SHABEER ALI
MANZIL, OZHINJAVALAPPIL, NEAR ZIYARATHINGAL
VALAPPIL MASJID, KANHANGAD, KASARAGOD
DISTRICT -, PIN - 671 315
BY ADVS.
K.SIJU
S.ABHILASH
ANJANA KANNATH
RESPONDENT(S):
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682 031
2 STATION HOUSE OFFICER
VANCHIYOOR POLICE STATION,
THIRUVANANTHAPURAM DISTRICT-,
PIN - 695 035
BA No.2054 of 2025
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BY ADV.:
SRI.G.SUDHEER, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BA No.2054 of 2025
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P.V.KUNHIKRISHNAN, J.
-------------------------------------------
BA No.2054 of 2025
--------------------------------------------
Dated this the 24th day of February, 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.2246/2023 of Vanchiyoor Police Station,
Thiruvananthapuram. The above case is
registered against the petitioner alleging offences
punishable under Section 22(c) and 29 of the
Narcotic Drugs and Psychotropic Substances
(NDPS) Act, 1985.
3. The prosecution case is that, on
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25.11.2023 at about 02.50 AM, as per the
instruction of the 2nd accused, the 1st accused
collected 75.68 gms of MDMA from New Delhi and
he brought the same at Thiruvananthapuram
Railway Station. At the time of arrival of the 1 st
accused, the 2nd and 3rd accused came to the
railway station to pick up the 1 st accused from
there and all the three were travelled in an
autorickshaw from Central Railway Station,
Thiruvananthapuram towards Kunnupuram
Junction. They parked their autorickshaw at
public road opposite to Akshara Offset Press at
Kunnumpuram Road. The Sub Inspector of Police,
Vanchiyoor got information ragarding the
possession of the contraband by the accused. He
proceeded to the place and arrested the accused
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and seized the contraband from their possession.
Hence, it is alleged that the accused committed
the offence. The petitioner herein who is
accused No.1 was arrested on 25.11.2023.
4. Heard the learned counsel appearing for
the petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner submitted
that the petitioner earlier filed a bail application
before this Court and this Court allowed the
petitioner to file a bail application before the trial
court. Accordingly the petitioner filed a bail
application before the trial court. But in that bail
application, the trial court found that there is
prima facie violation of Section 50 of the NDPS
Act and there is reasonable ground for believing
that the accused not guilty of the alleged offence.
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Even then the bail application is dismissed. The
counsel submitted that the petitioner is also
entitled to the benefit of Apex Court decision in
Ankur Chaudhary v. State of Madhya
Pradesh [2024 Live Law (SC) 416], because
the petitioner is in custody for 1 year and 3
months.
6. The Public Prosecutor opposed the bail
application. The Public Prosecutor submitted that
the contraband seized is commercial quantity and
therefore, Section 37 of the NDPS Act is attracted.
7. This Court considered the contentions of
the petitioner and the Public Prosecutor. This
court perused Annexure-A4 order. It will be better
to extract paragraph No.16 of Annexure-A4 order:
"On consideration of the above facts, I find that
prima facie there is a violation of S.50 of the Act
and there is a reasonable grounds for believing
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that the accused is not guilty of the alleged
offence. In other words, the petitioner has
substantiated the first limb of clause (ii) S.37 (i)
(b)of the NDPS Act. Now the question to be
considered is whether the petitioner has satisfied
the second limb of the said clause of S.37 of the
Act. As per S.37 of the NDPS Act the accused has
to satisfy the Court that there is no likelihood of
offence while on bail. From the report filed by the
investigating Officer it is seen that the petitioner
has committed another offence under the NDPS
Act which was registered by the NCB, New Delhi
and 29 of the NDPS Act. In a case where there is
an antecedent regarding the commission of
offence of similar nature is one of the grounds for
denying bail and it is one of the relevant factors
while arriving the satisfaction of the second limb
of sub-clause (ii) of clause (b) of Sub-section (1)
of S.37. The Hon'ble High court in the decision of
Sudheer v. State of Kerala 2012 (1) KLT 542
observed as follows:
"Under sub-clause (ii) of S.37(1)(b) of
NDPS Act, one of the ingredients is that
the Court must be satisfied that the
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accused is not likely to commit any
offence while on bail. Criminal
antecedents of the accused is also a
relevant while arriving at the satisfaction.
If the accused is involved in other cases
under the NDPS Act, it is certainly a
relevant factor while arriving at the
satisfaction by the Court. The question is
whether it is necessary to show that the
accused was involved in cases under the
NDPS Act for possessing commercial
quantity of psychotropic substance in
order to deny bail in the present case
where commercial quantity of
psychotropic substance is involved. In
other words, it is necessary to show that
the accused was involved in similar cases
under the NDPS Act? I am of the view
that it is not necessary at all. The
expression in sub-clause (ii) is 'he is not
likely to commit any offence while on
bail'. 'Any offence' includes any offence
under the penal statute."
8. A perusal of the same would show that,
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the court already found that there is prima facie
violation of Section 50 of the NDPS Act and there
is reasonable ground for believing that the
accused is not guilty of the alleged offence.
9. The petitioner is in custody from
25.11.2023. This Court directed the Registry to
get a report about the time required to dispose of
the case. The Addl. Sessions Court - II,
Thiruvananthapuram submitted a report in which
it is stated that the court already scheduled
sessions case till 19.06.2025 and the court
required 6 months from 19.06.2025. That means
there is no chance to conclude the trial in the
near future. The counsel relied on the judgments
of the Apex Court in Ankur Chaudhary v. State
of Madhya Pradesh [2024 Live Law (SC) 416]
and Nitish Adhikary @ Bapan v. The State of
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West Bengal [SLP to Appeal (Crl.) No.5769
of 2022], Hasanujjaman and others v. The
State of West Bengal [SLP to Appeal (Crl.)
No.3221 of 2023] and also the decision of this
Court in Shuaib A.S v. State of Kerala [2025
SCC Online 618]. In the light of the above
principle, I think, the petitioner can be released
on bail after imposing stringent conditions. As
per the above dictum laid down by this Court and
the Apex Court, the rigour under Section 37 of the
NDPS Act can be relaxed in certain circumstances.
I am of the considered opinion that this is a fit
case in which the rigour under Section 37 of the
NDPS Act can be relaxed. The petitioner can be
released on bail after imposing stringent
conditions.
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10. 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.
11. 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
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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)
12. In Manish Sisodia v. Directorate of
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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
circumstances of this case, this Bail Application is
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allowed with the following conditions:
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 to dissuade
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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 with law, even
though the bail is granted by this
Court. The prosecution is at liberty
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to approach the jurisdictional court
to cancel the bail, if there is any
violation of the above condition.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
