Kerala High Court

Shanavas K.C vs Union Territory Of Lakshadweep on 7 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                          2025:KER:19499


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946

                      BAIL APPL. NO. 2358 OF 2025

     CRIME NO.8/2024 OF Anthroth Police Station, Lakshadweep

      AGAINST THE ORDER/JUDGMENT DATED 14.02.2025 IN CRMP NO.15 OF

2025 OF DISTRICT & SESSIONS COURT, KAVARATHY


PETITIONER/S:

            SHANAVAS K.C
            AGED 26 YEARS
            S/O ATTAKOYA B, KAVALCHETTA HOUSE ANDROTH ISLAND, UNION
            TERRITORY OF LAKHSADWEEP, PIN - 682551


            BY ADVS.
            R.ROHITH
            HARISHMA P. THAMPI




RESPONDENT/S:

            UNION TERRITORY OF LAKSHADWEEP
            REPRESENTED BY STANDING COUNSEL HIGH COURT OF KERALA AT
            ERNAKULAM., PIN - 682031


            BY ADV R.V.SREEJITH, SC, U.T.ADMINISTRATION OF
            LAKSHADWEEP


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                        2025:KER:19499
BAIL APPL. NO.2358 OF 2025

                                  2
                     P.V.KUNHIKRISHNAN, J
                     --------------------------------
                        B.A.No.2358 of 2025
                      -------------------------------
              Dated this the 07th day of March, 2025

                               ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is the accused in Crime No.8/2024

of Anthroth Police Station, Lakshadweep. The above case is

registered against the petitioner alleging offences punishable

under Sections 22(b), 27(A) of Narcotic Drugs and

Psychotropic Substances Act (NDPS Act) and Section 3(a) of

the LPR (Lakshadweep Prohibition Regulation) 1979.

Petitioner was arrested on 07.10.2024 and he is continuing in

the judicial custody.

3. The prosecution case is that, on 07.10.2024,

while a police party was on routine patrol duty, they observed

the 1st accused, who is the petitioner herein behaving in a

suspicious manner near Panda Mosque, Androth. Acting on

suspicion, the detecting officer conducted a body search of 1 st 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

accused. During the search, the officer recovered two packets

of contraband concealed inside a Gold Flake cigarette cover,

the contraband was identified as MDMA weighing

approximately 5 grams in total. After removing the cover, the

quantity of MDMA assessed as 4.5 grams. Petitioner was

arrested on 07.10.2025. Hence, it is alleged that the accused

committed the offence.

4. Heard counsel for the petitioner and the

Standing Counsel appearing for the Union Territory,

Lakshadweep.

5. The counsel for the petitioner submitted that,

admittedly the quantity seized is intermediate quantity and

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

attracted. The counsel submitted that there is no criminal

antecedents to the petitioner. The counsel also submitted

that Section 27(A) of the NDPS Act is subsequently added

with a view to deny bail to the petitioner. The counsel

submitted that according to the prosecution, there is a money

transaction between the petitioner and the wife of the 2 nd 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

accused. It is submitted that even if there is a single

transaction, in the light of the judgment of the Apex Court in

State of West Bengal v Rakesh Singh @ Rakesh Kumar

Singh [2022 Livelaw (SC) 580], the Section 27(A) of the

NDPS Act is not attracted. The Standing Counsel appearing for

the Union Territory of Lakshadweep, seriously opposed the

bail application. The Standing Counsel takes me through the

report filed by the Investigating Officer in this case and

submitted that it is a clear case in which Section 27(A) of the

NDPS Act is attracted. There is CCTV footage and other

materials to show that there is a financial transaction

between the petitioner and the wife of the 2nd accused. It is

also submitted that there are details of phone calls between

accused Nos.1 and 2. Hence, it is submitted that Section

27(A) of the NDPS Act is applicable and therefore, the rigour

under Section 37 of the NDPS Act is attracted.

6. This Court considered the contentions of the

petitioner and the Public Prosecutor. Admittedly, the quantity

of contraband seized is intermediate quantity. It is also an 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

admitted fact that originally the case was registered under

Section 22(b) of the NDPS Act alone. Subsequently Section

27A of the NDPS Act is added. The respondents rely on the

financial transaction between the petitioner and the wife of

the 2nd accused, which is narrated in paragraph Nos.4 & 5 of

the report filed by the Investigating Officer. It will be better to

extract the same:

" 4. The offense committed by the accused is extremely serious in nature. The investigation is in its final stage. There are clear evidences that Shanavas KC (A1) has transferred money and made a phone call to Mohammed NavabShareef KI (A2), for importing MDMA from Kochi to the island. There are evidences to the effect that the petitioner is a financier and peddler of the drug trafficking in the islands. There are CC Tv footages which shows that the Al depositing Rs.50,000 in A2's wife's Account. The CCTV footage from the Thopumpady Canara branch shows that the A2 withdrawing part of the same amount from her wife's account .The involvement of others are also to be investigated as there is a transit of narcotic substance from the main land to the islands.

5. On August 4, 2024, Mohammed NavabShareef KI (A2) traveled from Kochi to Androth Island on the MV Lagoons, carrying MDMA. On the following day, August 5, 2024, A2 handed over the MDMA to 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

Shanavas KC (A1) in Androth. Phone records show that they made seven calls to each other on the same day. It Shows that the first accused had contacted the A2 59 times from 1.5.2024 to 7.10.2024. A2 had contacted the Al for more than 46 times in turn."

7. From the above it is clear that, there is only a

single transaction. The prosecution is also relying on the

phone calls. The Apex Court in Rakesh Singh's case (supra)

considered an appeal by the State of West Bengal, against an

order passed by the Culcutta High Court. The Culcutta High

Court's finding is extracted in the above judgment. It will be

better to extract the same also:

" Fourthly, in so far as the offence under Section 27A of the NDPS Act is concerned, i.e. financing illicit trafficking and harbouring offenders, prima facie we do not find material evidence to support that charge. In our view, being involved in one solitary transaction concerning contraband items will not amount to financing illicit traffic in narcotics. The word "trafficking" connotes continuous flow. There has to be some degree of continuity and regularity in drug dealing before a person can be said to be trafficking in drugs. Similarly, financing illicit traffic would necessarily mean doing so on a regular or continuous basis. It is much more than purchasing or selling contraband items on one occasion. Such a solitary transaction would, in our prima facie 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

opinion, not fall within the mischief of Section 27A of the NDPS Act. In this connection, one may refer to a decision of the Bombay High Court rendered on October 7, 2020 in Criminal Bail Application (Stamp) No. 2386 of 2020 (Reha Chakraborty v. The Union of India State of Maharashtra)."

8. The above finding is confirmed by the Apex

Court.

9. The other point raised by the prosecution is

that, there is some phone calls between accused Nos.1 and 2.

That is a settled position that, that alone is sufficient to prove

the ingredients of Section 27(A ) of the NDPS Act.

10. Admittedly the petitioner is in custody from

07.10.2024; i.e., he is in custody for about 151 days. If

Section 27(A) of the NDPS Act is not attracted, the quantity

seized is only intermediate quantity. There is no criminal

antecedents also. From the facts and circumstances of the

case, I am not ready to accept the contention of the

prosecution that Section 27(A) of NDPS Act is attracted. But, I

make it clear that, it is only for the purpose of deciding this

bail application and the Investigating Officer is free to 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

investigate the matter untrammeled by any observation in

this order. The principle laid down by this Court in Anzar

Azeez v State of Kerala [2025 Livelaw (Ker) 144],

squarely applicable in the facts and circumstances of the

case. But, considering the facts and circumstances of the

case, I think, the petitioner can be released on bail after

imposing stringent conditions. But, I make it clear that, if the

petitioner is involved in similar offence in future, the

Investigating Officer can file appropriate application before

the Jurisdictional Court for cancellation of bail and if such an

application is filed, the Jurisdictional Court can pass

appropriate orders in it, eventhough, this order is passed by

this Court.

11. 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 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

bail is the rule and refusal is the exception so as to ensure

that the accused has the opportunity of securing fair trial.

12. 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 where 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

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)

13. 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:19499 BAIL APPL. NO.2358 OF 2025

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. Petitioner shall be released on bail on

executing a bond for Rs.50,000/- (Rupees

Fifty Thousand only) with two solvent 2025:KER:19499 BAIL APPL. NO.2358 OF 2025

sureties each for the like sum to the

satisfaction of the jurisdictional Court.