Kerala High Court

Rahul vs State Of Kerala on 22 January, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                               2025:KER:4908

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946

                       BAIL APPL. NO. 11249 OF 2024

    CRIME NO.1211/2024 OF Karunagapally Police Station, Kollam

PETITIONER/ACCUSED NO.2:

            SUJITH S.,
            AGED 25 YEARS
            S/O SUSHEELAN, RESIDING AT SURYA BHAVANAM,
            ALUMKADAVE P.O., MARU NORTH MURI,
            KARUNAGAPALLY, PIN - 690518

            BY ADVS.
            R.RAJESH (VARKALA)
            M.KIRANLAL
            MANU RAMACHANDRAN
            T.S.SARATH
            SAMEER M NAIR
            SAILAKSHMI MENON
            SMT.AKHILA B.


RESPONDENT:

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

            BY ADV
            SRI.NOUSHAD K.A - SR.PP


     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
22.01.2025, ALONG WITH Bail Appl..9922/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 B.A.NOS. 11249 & 9922 OF 2024     2




                                                 2025:KER:4908


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946

                   BAIL APPL. NO. 9922 OF 2024

 CRIME NO.1211/2024 OF Karunagapally Police Station, Kollam

PETITIONER/ACCUSED:

           RAHUL
           AGED 24 YEARS
           S/O RAJEEVAN, RAJESH BHAVANAM,
           MARUTHURKULANAGRA SOUTH MURI, ALUMKADAVU.P.O,
           KARUNAGAPALLY VILLAGE, KOLLAM, PIN - 690573

           BY ADVS.
           K.R.RAJEEV KRISHNAN
           SAYUJYA RADHAKRISHNAN


RESPONDENT:

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

           BY ADV
           SRI.HRITHWIK C.S - SR.PP


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.01.2025, ALONG WITH Bail Appl..11249/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.NOS. 11249 & 9922 OF 2024   3




                                                  2025:KER:4908

                 P.V.KUNHIKRISHNAN, J
                 --------------------------------
             B.A.Nos. 11249 & 9922 of 2024
                  -------------------------------
         Dated this the 22nd day of January, 2025


                        COMMON ORDER

These Bail Applications are filed under Section 483

of Bharatiya Nagarik Suraksha Sanhita.

2. These Bail applications are connected and

therefore I am disposing of these bail applications by a

common order.

3. Petitioners are the accused in Crime

No.1211 of 2024 of Karunagapally Police Station, Kollam

registered alleging offences punishable under Sections

22(c), 27(A) and 29 of the Narcotic Drugs and Psychotropic

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

4. The prosecution case is that on 30.08.2024,

while the detecting officer was on patrol duty, the 1 st

accused was found in possession of 28.44 grams of MDMA.

The further investigation revealed that the accused Nos.2 to

4 are also involved in the case. Accused Nos.3 and 4 are

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foreign nationals.

5. Heard counsel for the petitioners and the

Public Prosecutor.

6. When the Bail Application No.9922 of 2024

came up for consideration on 19.12.2024, this Court passed

the following order which is extracted hereunder;

"When this bail application came up for consideration on 13.12.2024, this Court passed the following order;

"In the light of the direction of this Court in Anuraj V. State of Kerala, [2024 (4) KHC 68], I will be forced to grant bail to the petitioner, eventhough, the quantity seized is commercial quantity of MDMA because even now, the Analyst Report is not received and it violates Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. One more chance can be given to the prosecution."

2. Today also the Public Prosecutor submitted that the Analyst Report is not received. The contention of the petitioner is that, even if the entire allegations are accepted, the contraband seized from the petitioner is not MDMA and at the maximum it may be Methamphetamine. If that is the case, it is intermediate quantity and rigor under Section 37 of the NDPS Act is not applicable.

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3. As per the order dated 13.12.2024, this Court granted one more chance to the Public Prosecutor to produce the same. Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, says that the Analysis is to be completed within 15 days. This court considered the matter in detail in Anuraj V. State of Kerala, [2024 (4) KHC 68]. Considering the facts and circumstances of the case, I think the petitioner can be granted interim bail till the Analyst Report is received after imposing stringent conditions. The order will be in force till 13.1.2025. The petitioner shall be released on bail till 13.1.2025 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 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.

2025:KER:4908

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."

Thereafter these two bail applications are

considered together and the learned Public Prosecutor seeks

time to produce the analyst report. Now the analyst report

is produced by the Public Prosecutor in which it can be seen

that the contraband seized from the petitioner is not MDMA,

but it is methamphetamine. If that is the case, the quantity

seized from the petitioner is intermediate quantity.

Therefore, the rigour under Section 37 of the NDPS Act is not

applicable in the facts and circumstances of these cases. It

is true that the offence under Section 27(A) of the NDPS Act

is also alleged. But considering the facts and circumstances,

I think at this stage, this Court is not in a position to

conclude that the offence under Section 27(A) is committed

by the petitioners.

7. The Public Prosecutor opposed the bail

application stating that there is money transaction between

the petitioners and the accused Nos.3 and 4, who are

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foreign nationals. Therefore, this Court may not release the

petitioners on bail. It is true that the allegation against the

petitioners are serious. But the petitioner in Bail Application

9922 of 2024 was arrested on 30.08.2024, the petitioner in

Bail Application No.11249 of 2024 was arrested on

01.10.2024. No criminal antecedents is alleged against the

petitioners. Considering the facts and circumstances of the

case, I think the petitioners can be released on bail on

condition that the if the petitioners involved in similar

offences in future, the Investigating Officer can file an

appropriate application before the Jurisdictional Court for the

cancellation of the bail and if such an application is received,

the Jurisdictional Court can pass appropriate orders, 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

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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 case

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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

2025:KER:4908

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 decision and considering the facts and circumstances

of this case, this Bail Application is allowed with the

following directions:

1. Petitioners 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.

2025:KER:4908

2. The petitioners shall appear before the

Investigating Officer for interrogation as

and when required. The petitioners 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 from disclosing

such facts to the Court or to any police

officer.

3. Petitioners shall not leave India without