Kerala High Court
Musthafa vs State Of Kerala on 7 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:19394
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. 2995 OF 2025
CRIME NO.7/2025 OF Pattambi Excise Range Office, Palakkad
AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.937 OF 2025
OF DISTRICT COURT & SESSIONS COURT, PALAKKAD
PETITIONER/S:
MUSTHAFA
AGED 66 YEARS
S/O MUHAMMED, PULIKKAL HOUSE, THIRUVEGAPURA,
PATTAMBI, PALAKKAD, PIN - 679303
BY ADVS.
T.K.SANDEEP
SWETHA R.
SREELAKSHMI SHIBU
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
G SUDHEER-PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.2995 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.7/2025
of Pattambi Excise Range. The above case is registered
against the petitioner alleging offences punishable under
Sections 20(b)(ii)(B) and 25 of the Narcotic Drugs and
Psychotropic Substances Act (NDPS Act).
3. The prosecution case is that; on 03.02.2025,
Excise Inspector seized 8.320 kilograms of Ganja from the
rented house of the accused. The petitioner was arrested on
03.02.2025.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that
the petitioner is in custody from 03.02.2025. The counsel
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submitted that the petitioner is ready to abide by any
conditions, if this Court grants him bail.
6. Public Prosecutor opposed the bail
application. But, he conceded that, as per the report received
by him from the Investigating Officer, no criminal antecedents
is alleged against the petitioner.
7. This Court considered the contention
of the petitioner and the Public Prosecutor. It is true that
allegation against the petitioner is serious. But, the quantity
seized is only intermediate quantity. Hence, the rigour under
Section 37 of the NDPS Act is not applicable. No criminal
antecedent is alleged against the petitioner. The petitioner is
in custody from 03.02.2025. 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 is free to file an
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, even
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though, this bail 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 made out for a
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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
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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
decision and considering the facts and circumstances of this
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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 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.
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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
SSG
