Kerala High Court
Saidali vs State Of Kerala on 5 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.2898 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
BAIL APPL. NO. 2898 OF 2025
CRIME NO.195/2025 OF KOLLAM EAST POLICE STATION, KOLLAM
PETITIONER(S)/ACCUSED:
SAIDALI
AGED 24 YEARS
S/O SHIHABUDEEN, MUTHIRAYYATHU VADAKKETHIL,
ERAVIPURAM, KOLLAM, PIN - 691011
BY ADVS.
SREERAJ M.D.
NEELANJANA NAIR
RESPONDENT(S)/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV.
SRI.NOUSHAD K.A., SR.P.P.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.2898 of 2025
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P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.2898 of 2025
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Dated this the 05th day of March, 2025
ORDER
This Bail Application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is an accused in Crime No.195 of 2025
of Kollam East Police Station registered alleging offence
punishable under Section 22(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'NDPS Act').
3. The prosecution case is that, on 22.01.2025 at
about 12.50 AM, the petitioner was found in possession of 8
grams of MDMA in Surya Lodge situated at Chamakkada. Hence it
is alleged that the accused committed the above said offence.
The petitioner was arrested on 22.01.2025.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
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5. Counsel for the petitioner submitted that the
allegation against the petitioner is not correct. The counsel
submitted that the petitioner is in custody from 22.01.2025. The
counsel submitted that the petitioner is ready to abide any
conditions if this Court grant him bail.
6. The Public Prosecutor opposed the bail
application and submitted that there are criminal antecedents to
the petitioner and he is involved in four other cases. But the
Public Prosecutor submitted that those cases are registered
alleging offences under the Indian Penal Code and no case is
registered against the petitioner under the NDPS Act.
7. This Court considered the contentions of the
petitioner and the Public Public Prosecutor. 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. The petitioner is in custody from 22.01.2025. No
criminal antecedents are alleged against the petitioner as far as
the NDPS Act is concerned. In such circumstances, I think the
petitioner can be released on bail considering the period of
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detention. 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
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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)
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
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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"."
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:
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
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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.
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
DM
