Kerala High Court

M D Nijam vs State Of Kerala on 26 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                     2025:KER:25686
BAIL APPL. NO. 4007 OF 2025

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           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947

                    BAIL APPL. NO. 4007 OF 2025

 CRIME NO.151/2025 OF Kolathur Police Station, Malappuram

        AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.229 OF

2025 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI

PETITIONER/ACCUSED NO.2:

           M D NIJAM
           AGED 27 YEARS
           S/O M D SBHAN, KARGHWANI, MADHUBANI, BIHAR,
           INDIA, PIN - 847211

           BY ADV ABDUL HADI M.P.


RESPONDENT/STATE:

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

    2      STATION HOUSE OFFICER
           KOLATHUR POLICE STATION, MALAPPURAM DISTRICT,
           PIN - 679338

           SR PP-NOUSHAD K A


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.03.2025,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                       2025:KER:25686
BAIL APPL. NO. 4007 OF 2025

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                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                       B.A. No.4007 of 2025
              ----------------------------------------------
            Dated this the 26th day of March, 2025

                                ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime No.151/2025

of Kolathur Police Station. The above case is registered against

the petitioner alleging offences punishable under Sections 20(b)

(ii)(B) and 29 of the Narcotic Drugs and Psychotropic

Substances Act (for short, NDPS Act).

3. The prosecution case is that the accused was

found in possession of 9.056 Kg of ganja.

4. Heard the learned counsel for the petitioner

and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that

the petitioner is in custody from 19.02.2025 and he is ready to

abide any conditions if this Court grant him bail. The Public 2025:KER:25686 BAIL APPL. NO. 4007 OF 2025

Prosecutor opposed the bail application. But the Public

Prosecutor submitted that as per the report received by him

from the Investigating Officer, no criminal antecedent is alleged

against the petitioner. The Public Prosecutor further submitted

that the petitioner is from the State of Bihar and if he released

on bail, he will not be available for trial. At this stage, the

counsel for the petitioner submitted that the petitioner is ready

to offer local sureties from the State of Kerala. The same is

recorded. It is made clear that this is not an order from this

Court and it is a voluntary submission of the counsel for the

petitioner of behalf of the petitioner.

6. This Court considered the contentions of the

petitioner and the Public Prosecutor. Admittedly the quantity

seized from the petitioner is only intermediate quantity. In such

circumstances, the rigor under Section 37 of the NDPS Act is

not attracted. No criminal antecedent is alleged against the

petitioner. The petitioner is in custody from 19.02.2025.

Considering the facts and circumstances of the case, I think the

petitioner can be released on bail after imposing stringent

conditions. I make it clear that if the petitioner is involved in 2025:KER:25686 BAIL APPL. NO. 4007 OF 2025

similar offence in future, the Investigating Officer is free to file

appropriate application for cancellation of bail and if such an

application is received, the jurisdictional court is free to pass

appropriate orders in that application even though this order is

passed by this Court.

7. 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.

8. 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 2025:KER:25686 BAIL APPL. NO. 4007 OF 2025

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)

9. 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 2025:KER:25686 BAIL APPL. NO. 4007 OF 2025

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"."

10. 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. The

submission of the counsel for the petitioner

that, the petitioner will offer local sureties, 2025:KER:25686 BAIL APPL. NO. 4007 OF 2025

is recorded.