Kerala High Court

Ajith vs State Of Kerala on 27 March, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                      2025:KER:26394
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947

                   BAIL APPL. NO. 4117 OF 2025

 CRIME NO.1102/2023 OF Karunagapally Police Station, Kollam

        AGAINST   THE   ORDER/JUDGMENT   DATED   IN   Bail    Appl.

NO.11071 OF 2024 OF HIGH COURT OF KERALA

PETITIONER/S:

           AJITH,
           AGED 26 YEARS
           S/O. BABU, MUTHIRAKUNNATHU VEETIL, AYATHIL
           VALIYAMADAM, KALLUMTHAZHAM CHERRY, KILIKOLLOOR
           VILLAGE, KOLLAM DISTRICT, PIN - 691004


           BY ADVS.
           SAM ISAAC POTHIYIL
           S.SURAJA
           MUHAMMED SUHAIR C.A




RESPONDENT/S:

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

    2      KARUNAGAPPALLY POLICE STATION,
           KOLLAM DISTRICT,, PIN - 690518
                                                                2025:KER:26394
B.A.No.4117 of 2025
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OTHER PRESENT:

             SR PP-NOUSHAD K A


      THIS   BAIL     APPLICATION   HAVING   COME   UP   FOR   ADMISSION   ON
27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                            2025:KER:26394
B.A.No.4117 of 2025
                                   3




                   P.V.KUNHIKRISHNAN, J.
              --------------------------------
                   B.A. No.4117 of 2025
             ---------------------------------
            Dated this the 27th day of March, 2025

                                  ORDER

This Bail Application is filed under Section

483 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime

No.1102/2023 of Karunagappally Police Station which

is now pending as S.C.No.32/2024 on the file of the

District and Sessions Court, Kollam. The above case

is registered against the petitioner and others

alleging offences punishable under Sections 22(c),

27A and 29 of the Narcotic Drugs and Psychotropic

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

3. The case originated on the basis of the

alleged seizure of 728.42 grams of Methamphetamine

from the possession of the 1st accused at the

coconut plantation of one Biju. The allegation 2025:KER:26394

levelled against accused Nos.2 to 5 is that they

entered in to a criminal conspiracy with the 1st

accused to procure the contraband article and

financed the procurement of the same. Hence it is

alleged that the accused committed the above said

offences. The petitioner was arrested on

26.08.2023.

4. Heard the learned counsel for the

petitioner and the learned Public Prosecutor. The

petitioner earlier filed a bail application as

B.A.No.11071 of 2024 and that application was

disposed of with the following directions;

"Therefore, this bail application is disposed of with the following directions:-

"1. The petitioner is free to file a bail application before the Jurisdictional Court within two weeks raising all the contentions raised in this bail application.

2. If such a bail application is received, the Jurisdictional Court will consider the same and pass appropriate orders 2025:KER:26394

in it, in the light of the principle laid down by the Apex Court in Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416] Nitish Adhikary @ Bapan v. The State of West Bengal [SLP to Appeal (Crl.) No.5769 of 2022], Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] and also the principle laid down by this Court in Shuaib A.S v. State of Kerala [2025 SCC Online 618], within two weeks from the date of receipt of the application."

5. Thereafter, the petitioner filed a fresh

bail application as directed by this Court. The

Principal Sessions Court, Kollam dismissed that

bail application as per Annexure A4 order. It will

be better to extract relevant portion of Annexure

A4 order.

"10. The prosecution records would prima facie reveal that all the accused including the petitioner herein had conspired together to purchase the contraband and financed for the procurement of the same and in furtherance of the said conspiracy, they purchased the contraband for the purpose of sale.

2025:KER:26394

11. Admittedly, in this case, commercial quantity of Methamphetamine was seized. Liberal approach in the matter of bail under NDPS Act is uncalled for. Nowadays, NDPS cases are on the rise. Drug abuse is a social menace. The case is now pending before this court as SC 32/2024. In this case, charge was framed on 04.03.2025 and summons was issued to CW1. Now, the case stands posted to 04.04.2025 for trial. Considering the entire facts and circumstances of the cases, I am of the view that if the petitioner is enlarged on bail, the possibility of fleeing from justice cannot be ruled out. In view of the nature and gravity of the offence alleged against the petitioner and also in view of the huge quantity of the narcotic substance involved in this case, I am of the view that this is a matter warranting custodial trial. In the said circumstances, I am not inclined to grant bail to the petitioner."

6. I am dissatisfied the way in which learned

Sessions Judge disposed the bail application. This

court in Annexure A3 order clearly stated that the

bail application should be considered in the light

of the judgment of the Apex Court and this Court,

which is specifically mentioned in the order.

2025:KER:26394

Ignoring such direction, the learned Sessions Judge

dismissed the bail application without adverting

those directions in the order. This is nothing, but

judicial impropriety. When there is a direction to

consider a bail application in the light of a

decision of the Apex Court, the trial court is

bound to obey such direction. I leave it there.

7. In Ankur Chaudhary v. State of Madhya

Pradesh [2024 Live Law (SC) 416], the Apex Court

observed like this:-

"6. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered."

2025:KER:26394

8. In Hasanujjaman's case (supra), the Apex

Court considered a case in which the accused were

in custody for one year and four months. In that

case also the contraband seized was commercial

quantity. Even then the Apex Court granted bail.

9. In Nitish Adhikary's case (supra), the Apex

Court observed like this:-

"During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents."

10. Admittedly the petitioner is in custody

from 26.08.2023. Now the petitioner is in custody

for one year and 7 months. Keeping in mind the

above dictum laid down by the Apex Court and also

the principles of Article 21 of the Constitution of

India, I think the rigour under Section 37 of the

NDPS Act can be relaxed in this case. The 2025:KER:26394

petitioner can be released on bail on stringent

conditions. It is also to be noted that the 5th

accused is already released on bail by the

Honourable Apex Court, as evident from Annexure A5

order. Therefore I think the petitioner can be

released on bail.

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 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 2025:KER:26394

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 there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only 2025:KER:26394

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 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, 2025:KER:26394

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"."

14. 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.2,00,000/- (Rupees two lakhs 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 2025:KER:26394

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

them 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 2025:KER:26394

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.