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2025 DIGILAW 755 (KER)

Muhammed Aslam K. M v. State Of Kerala

2025-03-27

P.V.KUNHIKRISHNAN

body2025
ORDER : This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ), 2023. 2. The petitioner is the 7 th accused in Crime No.344/2024 of Chengamanadu Police Station, Ernakulam. The above case is registered against the petitioner and others alleging offences punishable under Sections 8 (c) , 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act , 1985. 3. The prosecution case is that, the accused 1 to 3 hatched a criminal conspiracy with the other accused, and the 4 th accused rented out a ZOOM car bearing No. KL-07-CW-0888 and reached Bangalore on 03.05.2024. Thereafter they stayed at Royal Platinum Suits in HSR Layout 2 nd sector, and from there, from the 8 th accused, they purchased 100 grams of methamphetamine hydrochloride. When they returned from there on 06.05.2024 and reached Kariyad, CW10 to CW16 tried to stop the vehicle, but the accused did not stop the vehicle. Later, when CW1 tried to stop the vehicle on the basis of the information received by him at 10:45 AM near Chengamanad junction, the accused 1 to 3 threw away a plastic cover that contained 100 grams of methamphetamine hydrochloride. Thereafter, the police party seized the said contraband from the roadside. At that time the car was driven by the 2 nd accused. Then accused 1 to 3 escaped with the car, and the 5 th and 6 th accused concealed the car bearing No. KL-07-CW-0888, which was used for the commission of the offence. Hence, it is alleged that the accused committed the offence. The allegation against the petitioner who is the 7 th accused is that he arranged another car to escape accused Nos.1 to 3. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the only allegation against the petitioner is that he arranged a car for escaping accused Nos.1 to 3. The counsel submitted that no contraband is seized from the petitioner. The petitioner is in custody from 07.05.2024. It is submitted that he was on interim bail for a short period. The counsel also submitted that the petitioner is ready to abide any condition, if this Court grant him bail. The counsel submitted that no contraband is seized from the petitioner. The petitioner is in custody from 07.05.2024. It is submitted that he was on interim bail for a short period. The counsel also submitted that the petitioner is ready to abide any condition, if this Court grant him bail. It is also submitted by the counsel that the observations in paragraph No.4 of Annexure-4 order by the Additional Sessions Judge-II, North Paravur to the effect that the petitioner who is the 7 th accused is involved in 6 other crimes including NDPS case is factually incorrect. 6. The Public Prosecutor opposed the bail application. Public Prosecutor submitted that the petitioner is also involved in this case and the offences alleged against the petitioner include Section 29 of the NDPS Act also. He also submitted that there is telephonic communication between the petitioner and the other accused, in addition to the evidence that, the petitioner arranged a car to accused Nos.1 to 3 for escape. 7. When this bail application came up for consideration on 18.03.2025, this Court passed the following order: “Public Prosecutor will get the details of the cases registered against the petitioner, because, it is submitted by the Public Prosecutor that the petitioner is involved in six other cases as per the report received by him. 2. It is also submitted by the counsel appearing for the petitioner that the only allegation against the petitioner, who is the 7th accused is that he arranged another car to escape accused Nos. 1 to 3. The Public Prosecutor will verify the same also. Post on 24.03.2025.” 8. Today, when the matter came up for consideration, the Public Prosecutor submitted that no criminal antecedents is there against the petitioner as per the report submitted by the Investigating Officer. The observation in paragraph No.4 of Annexure-4 order is not correct. What remains is the allegation against the petitioner. According to the prosecution, the petitioner facilitated accused Nos.1 to 3 to escape and he provided a car to them. According to the prosecution he drove the car with accused Nos.1 to 3. It is also submitted that there was some telephonic communication between the petitioner and the main accused. 9. In Mansoor Ali v. State of Kerala [2025 KHC OnLine 362], this Court observed that the communication between the accused alone is not sufficient to attract Section 29 of the NDPS Act. It is also submitted that there was some telephonic communication between the petitioner and the main accused. 9. In Mansoor Ali v. State of Kerala [2025 KHC OnLine 362], this Court observed that the communication between the accused alone is not sufficient to attract Section 29 of the NDPS Act. The other evidence available against the petitioner is that he facilitated the accused to escape in a car. That alone is not sufficient to attract Section 29 of the NDPS Act. But, I make it clear that these observations are made only for the purpose of considering this bail application and the Investigating Officer is free to investigate the matter untrammeled by any observation in this order. As on today, there is evidence lacking against the petitioner who is the 7 th accused. In such circumstances, the rigour under Section 37 of the NDPS Act can be relaxed in this case. Moreover, the petitioner is in custody from 07.05.2024, ie, he is in custody for about 6 months. Considering the facts and circumstances of the case, I think, the petitioner can be released on bail after imposing stringent conditions. 10. 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. 11. 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. 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) 12. 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".” Considering the dictum laid down in the above decisions and considering the facts and circumstances of this case, this Bail Application is allowed with the following conditions: 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. 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. 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 with law, even though the bail is granted by this Court. The prosecution is at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above condition.