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2025 DIGILAW 602 (KER)

Kiran T. S/o. Krishna Kumar v. State of Kerala

2025-03-17

P.V.KUNHIKRISHNAN

body2025
ORDER : This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023. 2. Petitioner is the 3 rd accused in Crime No.235/2024 of Meenangadi Police Station, Wayanad. The above case is registered against the petitioner and others alleging offences punishable under Section 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Petitioner was arrested on 18.04.2024 and he is in custody. 3. The prosecution case is that on 06.04.2024 at about 9.30 am, while accused 1 and 2 were found in possession of 349 gram of MDMA, near panchayath bus stand, Meenangadi, in contravention to the provisions of NDPS Act. It is alleged that accused Nos.1 and 2 purchased the contraband from the 4 th accused for the purpose of sale to the 3 rd accused and committed the above offences. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submits that the allegation against the petitioner is that an amount of Rs.2,60,000/- was transferred to the 2 nd accused. He also submits that there is nothing to show that the above transaction is in connection with NDPS Act. It is also submitted that except the same, there is no other materials against the petitioner. It is also submitted that 1 st and 2 nd accused were already arrested and released on bail because the investigation was not conducted within the statutory period. It is submitted that the petitioner is in custody from 19.04.2024. The counsel relied on the judgment of the Apex Court in Shince Babu v. State of Kerala [2024 KHC OnLine 8084] 6. The Public Prosecutor also opposed the bail application. The Public Prosecutor submits that there is material against the petitioner and there is monetary transaction between the petitioner and 2 nd accused. It is an admitted fact that there is no contraband seized from the petitioner. It is also admitted that 1 st and 2 nd accused were released on default bail. The petitioner was arrested on 19.04.2024. He is in custody for about 11 months. The petitioner relied on the judgment of the Apex Court in Shince Babu 's case (supra). It is better to extract the relevant portions of the above judgment. Paragraphs 3 to 8 of the said judgment read as follows: 3. The petitioner was arrested on 19.04.2024. He is in custody for about 11 months. The petitioner relied on the judgment of the Apex Court in Shince Babu 's case (supra). It is better to extract the relevant portions of the above judgment. Paragraphs 3 to 8 of the said judgment read as follows: 3. We have heard learned counsel for the parties and carefully perused the material placed on record. 4. It may be seen from para 6 of the impugned order that the High Court, while declining bail to the petitioner, was largely influenced by the fact that a huge quantity of contraband, which falls in the category of commercial', was recovered and as such, the rigors of S.37 of the NDPS Act are attracted. On a specific query, it is not disputed by learned State counsel that no contraband was recovered from the conscious possession of the petitioner. In such circumstances, it is difficult for us to apply the twin test of S.37 of the NDPS Act while considering the petitioner's prayer for bail. 5. Be that as it may, the petitioner is in custody since 11.04.2022 except for the period from 20.09.2022 to 27.06.2023 when he remained on bail pursuant to the order passed by the Trial Court / Sessions Court. 6. It seems that the investigation is complete and the conclusion of trial will take some reasonable time. The petitioner's co-accused are already on regular bail /default bail. As per the record, there are no criminal antecedents of the petitioner. 7. Taking into consideration all the attending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail to the petitioner. 8. The petitioner is, accordingly directed to be enlarged on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court. 7. Considering the above dictum, I think the rigour under Section 37 of the NDPS Act can be relaxed in this case also. The only material against the petitioner is some money transaction and whether the same is for the purpose of narcotic drugs is a matter of evidence. I do not want to make an observation about the same. Moreover, the petitioner is in custody from 19.04.2024. 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. I do not want to make an observation about the same. Moreover, the petitioner is in custody from 19.04.2024. 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 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. 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, 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 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 they are 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.