BY AD vs P.MOHAMED SABAH

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 THE EXCISE INPECTOR EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ERNAKULAM, ERNAKULAM P.O., ERNAKULAM DISTRICT,, PIN-682018 SRI.NOUSHAD.K.A, SENIOR PUBLIC PROSECUTOR BAIL APPL. NO. 4317 OF 2025 -2- THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4317 OF 2025 -3- P.V.KUNHIKRISHNAN, J ------------------------------------------ B.A.No.4317 of 2025 ------------------------------------------ Dated this the 1st day of April, 2025 ORDER The petitioner herein is an accused in Crime No. 16/2025 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Section 20(b) (ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. The prosecution case is that on 22.02.2025 at 07.10 p.m., the accused was found in possession of

1.203 kilograms of ganja. The petitioner was arrested on

22.02.2025.

3. Heard the counsel for the petitioner and the Public Prosecutor.

4. The counsel for the petitioner submitted that the petitioner was arrested on 22.02.2025. The counsel BAIL APPL. NO. 4317 OF 2025 -4- also submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. It is submitted by the learned counsel for the petitioner that the petitioner will furnish local sureties. The said submission is recorded.

5. The Public Prosecutor opposed the bail application. But the Public Prosecutor submitted that as per the report received by him, no criminal antecedents are alleged against the petitioner.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. Admittedly the quantity seized from the petitioner is only intermediate quantity. In such circumstances, the rigor under Section 37 of the NDPS Act is not attracted. No criminal antecedent is alleged against the petitioner. The petitioner is in custody from 22.02.2025. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. I make it clear that if the petitioner is involved in similar offence in future, the BAIL APPL. NO. 4317 OF 2025 -5- Investigating Officer is free to file appropriate application for cancellation of bail and if such an application is received, the jurisdictional court is free to pass appropriate orders in that application even though this order is passed by this Court.

7. 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.

8. 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 BAIL APPL. NO. 4317 OF 2025 -6- 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 BAIL APPL. NO. 4317 OF 2025 -7- Constitution.” (underline supplied)

9. 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".”

10. Considering the dictum laid down in the BAIL APPL. NO. 4317 OF 2025 -8- 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.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. The submission of the counsel for the petitioner that the petitioner will furnish local sureties is recorded.

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. BAIL APPL. NO. 4317 OF 2025 -9-

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. Sd/- P.V.KUNHIKRISHNAN JUDGE BAIL APPL. NO. 4317 OF 2025 -10- APPENDIX OF BAIL APPL. 4317/2025 PETITIONER'S ANNEXURES Annexure 1 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO. 16 OF 2025 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ERNAKULAM

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 THE EXCISE INPECTOR EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ERNAKULAM, ERNAKULAM P.O., ERNAKULAM DISTRICT,, PIN-682018 SRI.NOUSHAD.K.A, SENIOR PUBLIC PROSECUTOR BAIL APPL. NO. 4317 OF 2025 -2- THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4317 OF 2025 -3- P.V.KUNHIKRISHNAN, J ------------------------------------------ B.A.No.4317 of 2025 ------------------------------------------ Dated this the 1st day of April, 2025 ORDER The petitioner herein is an accused in Crime No. 16/2025 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Section 20(b) (ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. The prosecution case is that on 22.02.2025 at 07.10 p.m., the accused was found in possession of

1.203 kilograms of ganja. The petitioner was arrested on

22.02.2025.

3. Heard the counsel for the petitioner and the Public Prosecutor.

4. The counsel for the petitioner submitted that the petitioner was arrested on 22.02.2025. The counsel BAIL APPL. NO. 4317 OF 2025 -4- also submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. It is submitted by the learned counsel for the petitioner that the petitioner will furnish local sureties. The said submission is recorded.

5. The Public Prosecutor opposed the bail application. But the Public Prosecutor submitted that as per the report received by him, no criminal antecedents are alleged against the petitioner.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. Admittedly the quantity seized from the petitioner is only intermediate quantity. In such circumstances, the rigor under Section 37 of the NDPS Act is not attracted. No criminal antecedent is alleged against the petitioner. The petitioner is in custody from 22.02.2025. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. I make it clear that if the petitioner is involved in similar offence in future, the BAIL APPL. NO. 4317 OF 2025 -5- Investigating Officer is free to file appropriate application for cancellation of bail and if such an application is received, the jurisdictional court is free to pass appropriate orders in that application even though this order is passed by this Court.

7. 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.

8. 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 BAIL APPL. NO. 4317 OF 2025 -6- 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 BAIL APPL. NO. 4317 OF 2025 -7- Constitution.” (underline supplied)

9. 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".”

10. Considering the dictum laid down in the BAIL APPL. NO. 4317 OF 2025 -8- 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.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. The submission of the counsel for the petitioner that the petitioner will furnish local sureties is recorded.

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. BAIL APPL. NO. 4317 OF 2025 -9-

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. Sd/- P.V.KUNHIKRISHNAN JUDGE BAIL APPL. NO. 4317 OF 2025 -10- APPENDIX OF BAIL APPL. 4317/2025 PETITIONER'S ANNEXURES Annexure 1 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO. 16 OF 2025 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ERNAKULAM