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2025 DIGILAW 748 (KER)

SHYAM P. S v. STATE OF KERALA

2025-03-26

P.V.KUNHIKRISHNAN

body2025
ORDER : This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the 2 nd accused in Crime No.907/2023 of Angamaly Police Station. The above case is registered against the petitioner and another alleging offences punishable under Sections 8 , 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Petitioner was arrested on 07.09.2023. 3. The prosecution case is that, on 07.09.2023 at about 00.15 hours, the accused Nos. 1 and 2 were found in possession of 147 gms of MDMA, which was kept beneath the music system of a motor car. Hence, it is alleged that the accused committed the offences. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The petitioner earlier filed a bail application before this Court as BA No. 2677/2025. That application was disposed by this Court with 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 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.” 6. Now, as per Annexure-7, the jurisdictional court dismissed the petition. I am not satisfied the way in which the Addl. Sessions Judge -II/In charge of Addl. District & Sessions Judge-I considered the bail application, when there is a specific direction from this Court to consider the bail application, in the light of the judgments of the Apex Court. This Court issued such a direction keeping in mind the right of a citizen under Article 21 of the Constitution of India. The personal liberty is above everything. 7. In Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416] the Apex Court observed like this:- “6. This Court issued such a direction keeping in mind the right of a citizen under Article 21 of the Constitution of India. The personal liberty is above everything. 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.” 8. In Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] 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 is commercial quantity. Even then the Apex Court granted bail. 9. In Nitish Adhikary @ Bapan v. The State of West Bengal [SLP to Appeal (Crl.) No.5769 of 2022], 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. Based on the above judgments, this Court directed to consider the bail application. Now, the learned Judge disposed the bail application as per Annexure-7, mainly with following reasoning. “In all the precedents discussed, prolonged detention of the accused was a key factor. Additionally, to determine whether Section 37 of the NDPS Act can be diluted in cases involving commercial quantity, the Hon'ble Apex Court has considered factors such as the antecedents of the accused and the progress of the trial, particularly when delays are due to the prosecution's fault. In the present case, the trial has not yet commenced as the concerned court is vacant. However, this delay cannot be attributed to any fault on the part of the prosecution. Regarding the petitioner's antecedents, the prosecution has submitted details of two prior registered cases against him. In the present case, the trial has not yet commenced as the concerned court is vacant. However, this delay cannot be attributed to any fault on the part of the prosecution. Regarding the petitioner's antecedents, the prosecution has submitted details of two prior registered cases against him. One case under the NDPS Act dates back to 2017. Subsequently, another case-Crime No. 907 of 2023 under Sections 22(c), 8(c), and 29 of the NDPS Act-was registered after the first case.” 11. The counsel for the petitioner submitted that out of the two antecedents registered against the petitioner, one is registered for consuming Ganja and other case is registered under IPC. Even if there is criminal antecedents, when there is a direction from this Court to consider a bail application, keeping in mind the personal liberty of a person under Article 21 of the Constitution of the India, the learned Judge erred in dismissing the petition. Admittedly, the petitioner is in custody from 07.09.2023. He is in custody for about 1 year and 6 months. In the light of the principle laid down by the Apex Court, which is extracted above, the rigour under Sec. 37 of the NDPS Act can be relaxed in this case. In such circumstances, the petitioner can be released on bail, after imposing stringent conditions. 12. 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. 13. 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. 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) 14. 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".” 15. 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. 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/her 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. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also. 6. 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.