BY AD vs IRFAN ZIRAJ

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 THE SUB INSPECTOR OF POLICE TIRUR POLICE STATION, MALAPPURAM DISTRICT, PIN - 676101 BY ADV. : SR PP - HRITHWIK C S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA No.4121 of 2025 2 P.V.KUNHIKRISHNAN, J. ------------------------------------------- BA No. 4121 of 2025 -------------------------------------------- Dated this the 02nd day of April, 2025 O R D E R This Bail Application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

2. The petitioner is an accused in Crime No.485/2025 of Tirur Police Station, Malappuram. The above case is registered against the petitioner alleging offences punishable under Section 303(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 and also under Section 20 r/w 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act,

3. The prosecution case is that the accused illegally transported the river sand in a lorry without BA No.4121 of 2025 3 any valid permit and license. Hence, it is alleged that the accused committed the offence.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that, even if the entire allegations are accepted, no offence is made out against the petitioner. The counsel also submitted that the petitioner is ready to abide any conditions imposed by this Court, if bail is granted to him.

6. The learned Public Prosecutor opposed the bail application.

7. This Court as per order dated 31.12.2021 in BA No.9571/2021 observed like this: “6. The offence under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 is bailable in nature. It is settled that when there is BA No.4121 of 2025 4 specific/special law covering the question of theft of river sand, the offence under Indian Penal Code would not apply. Considering the allegations levelled against the petitioner, the custodial interrogation of the petitioner does not appear to be necessary. For all these reasons, the petitioner is entitled to pre-arrest bail on conditions.” In the light of the above principle, I think, this bail application can be allowed after imposing stringent conditions.

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 BA No.4121 of 2025 5 that the accused has the opportunity of securing fair trial.

9. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to BA No.4121 of 2025 6 the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

10. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that, even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. 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. The petitioner shall appear before the Investigating Officer within two weeks today and shall undergo interrogation. BA No.4121 of 2025 7

2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.

3. 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. BA No.4121 of 2025 8

4. Petitioner shall not leave India without permission of the jurisdictional Court.

5. Petitioner shall not commit an offence similar to the offence of which he accused, or suspected, of the commission of which he is suspected.

6. 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.

7. Needless to mention, it would be within the powers of the investigating officer to investigate the matter and, if necessary, to effect BA No.4121 of 2025 9 recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].

8. If any of the above conditions are violated by the petitioner jurisdictional Court can cancel the bail in accordance to law, even though this bail is granted by this Court. The prosecution is at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. Sd/- P.V.KUNHIKRISHNAN JUDGE