2025:KER:26394 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947 BAIL APPL. NO. 4117 OF 2025 CRIME NO.1102/2023 OF Karunagapally Police Station, Kollam AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.11071 OF 2024 OF HIGH COURT OF KERALA PETITIONER/S: AJITH, AGED 26 YEARS S/O. BABU, MUTHIRAKUNNATHU VEETIL, AYATHIL VALIYAMADAM, KALLUMTHAZHAM CHERRY, KILIKOLLOOR VILLAGE, KOLLAM DISTRICT, PIN - 691004 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA MUHAMMED SUHAIR C.A RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 KARUNAGAPPALLY POLICE STATION, KOLLAM DISTRICT,, PIN - 690518 2025:KER:26394 B.A.No.4117 of 2025 2 OTHER PRESENT: SR PP-NOUSHAD K A THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:26394 B.A.No.4117 of 2025 3 P.V.KUNHIKRISHNAN, J. -------------------------------- B.A. No.4117 of 2025 --------------------------------- Dated this the 27th day of March, 2025 ORDER This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.1102/2023 of Karunagappally Police Station which is now pending as S.C.No.32/2024 on the file of the District and Sessions Court, Kollam. The above case is registered against the petitioner and others alleging offences punishable under Sections 22(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). 3. The case originated on the basis of the alleged seizure of 728.42 grams of Methamphetamine from the possession of the 1st accused at the coconut plantation of one Biju. The allegation 2025:KER:26394 B.A.No.4117 of 2025 4 levelled against accused Nos.2 to 5 is that they entered in to a criminal conspiracy with the 1st accused to procure the contraband article and financed the procurement of the same. Hence it is alleged that the accused committed the above said offences. The petitioner was arrested on 26.08.2023. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. The petitioner earlier filed a bail application as B.A.No.11071 of 2024 and that application was disposed of with the following directions; “Therefore, this bail application is disposed of with the 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 2025:KER:26394 B.A.No.4117 of 2025 5 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.” 5. Thereafter, the petitioner filed a fresh bail application as directed by this Court. The Principal Sessions Court, Kollam dismissed that bail application as per Annexure A4 order. It will be better to extract relevant portion of Annexure A4 order. “10. The prosecution records would prima facie reveal that all the accused including the petitioner herein had conspired together to purchase the contraband and financed for the procurement of the same and in furtherance of the said conspiracy, they purchased the contraband for the purpose of sale. 2025:KER:26394 B.A.No.4117 of 2025 6 11. Admittedly, in this case, commercial quantity of Methamphetamine was seized. Liberal approach in the matter of bail under NDPS Act is uncalled for. Nowadays, NDPS cases are on the rise. Drug abuse is a social menace. The case is now pending before this court as SC 32/2024. In this case, charge was framed on 04.03.2025 and summons was issued to CW1. Now, the case stands posted to 04.04.2025 for trial. Considering the entire facts and circumstances of the cases, I am of the view that if the petitioner is enlarged on bail, the possibility of fleeing from justice cannot be ruled out. In view of the nature and gravity of the offence alleged against the petitioner and also in view of the huge quantity of the narcotic substance involved in this case, I am of the view that this is a matter warranting custodial trial. In the said circumstances, I am not inclined to grant bail to the petitioner.” 6. I am dissatisfied the way in which learned Sessions Judge disposed the bail application. This court in Annexure A3 order clearly stated that the bail application should be considered in the light of the judgment of the Apex Court and this Court, which is specifically mentioned in the order. 2025:KER:26394 B.A.No.4117 of 2025 7 Ignoring such direction, the learned Sessions Judge dismissed the bail application without adverting those directions in the order. This is nothing, but judicial impropriety. When there is a direction to consider a bail application in the light of a decision of the Apex Court, the trial court is bound to obey such direction. I leave it there. 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.” 2025:KER:26394 B.A.No.4117 of 2025 8 8. In Hasanujjaman's case (supra), 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 was commercial quantity. Even then the Apex Court granted bail. 9. In Nitish Adhikary's case (supra), 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. Admittedly the petitioner is in custody from 26.08.2023. Now the petitioner is in custody for one year and 7 months. Keeping in mind the above dictum laid down by the Apex Court and also the principles of Article 21 of the Constitution of India, I think the rigour under Section 37 of the NDPS Act can be relaxed in this case. The 2025:KER:26394 B.A.No.4117 of 2025 9 petitioner can be released on bail on stringent conditions. It is also to be noted that the 5th accused is already released on bail by the Honourable Apex Court, as evident from Annexure A5 order. Therefore I think the petitioner can be released on bail. 11. 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. 12. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court 2025:KER:26394 B.A.No.4117 of 2025 10 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 2025:KER:26394 B.A.No.4117 of 2025 11 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) 13. 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, 2025:KER:26394 B.A.No.4117 of 2025 12 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".” 14. 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.2,00,000/- (Rupees two lakhs 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 2025:KER:26394 B.A.No.4117 of 2025 13 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 he is 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 2025:KER:26394 B.A.No.4117 of 2025 14 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. 6. Registrar (District Judiciary) will forward a copy of this order to the Principal District Judge, Kollam forthwith. Sd/- P.V.KUNHIKRISHNAN JUDGE Scl/