2025:KER:29151 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 BAIL APPL. NO. 4498 OF 2025 CRIME NO.10/2025 OF KAVARATHI POLICE STATION, LAKSHADWEEP AGAINST THE ORDER DATED 26.03.2025 IN CMP NO.37 OF 2025 OF JUDICIAL MAGISTRTE OF 1ST CLASS,ANDROTH PETITIONER/1ST ACCUSED: MOHAMMED SHAFEEQ T.I AGED 30 YEARS S/O. MUJEEB RAHMAN, RESIDING AT THEKKILAILLAM, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN - 682555 BY ADVS. AASHIQUE AKTHAR HAJJIGOTHI AMINA AKTHAR RESPONDENT/COMPLAINANT: THE STATION HOUSE OFFICER KAVARATTI POLICE STATION, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP, REPRESENTED BY THE STANDING COUNSEL UT OF LAKSHADWEEP, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BAIL APPL. NO. 4498 OF 2025 2 2025:KER:29151 OTHER PRESENT: PREMJITH KUMAR(SC) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 4498 OF 2025 3 2025:KER:29151 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.4498 of 2025 ------------------------------- Dated this the 4th day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.10 of 2025 of Kavarathi Police Station, Lakshadweep. The above case is registered against the petitioner and two others alleging offences punishable under Sections 20(b)(ii)A of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and 3(a) and 7 of Lakshadweep Prohibition Regulation (for short 'LPR') 3. The prosecution case is that on 20.03.2025, at 00:30 hrs, while the police party was carrying on night patrolling received credible information that the 1st accused is selling Ganja in public at his hotel. Police officials searched the premises, and accused persons in the presence of Executive Magistrate, Kavaratti, were found in possession BAIL APPL. NO. 4498 OF 2025 4 2025:KER:29151 of 24 grams of ganja from the 1st accused and 19 grams of ganja from the 2nd and 3rd accused. Petitioner and other accused persons were arrested on 20.03.2025. 4. Heard counsel for the petitioner and the learned Standing Counsel appearing for Lakshadweep. 5. The counsel for the petitioner submitted that the offences alleged are all bailable offence and the petitioner is denied bail by the learned Magistrate without any sufficient reason. 6. Standing Counsel opposed the bail application. Standing Counsel submitted that, petitioner is a habitual offender. There are five cases registered against the petitioner. If he is released on bail, he will commit similar type of offence in future also. Therefore, this Court may not grant bail to the petitioner. The learned Standing Counsel also takes me through paragraphs 8 and 9 of Annexure A2 order. 7. This Court considered the contention of the petitioner and the Standing Counsel. It is true that the allegations against the petitioner is very serious. But the fact BAIL APPL. NO. 4498 OF 2025 5 2025:KER:29151 remains that the offence alleged under the NDPS Act is a bailable offence. The maximum punishment that can be imposed for the offence under Sections 3(a) and 7 of LPR is up to three years or fine or both. The petitioner is in custody from 20.03.2025. Considering the facts and circumstances of the case, indefinite incarceration of the petitioner is not necessary. But, I make it clear that, if the petitioner is involved in similar offence in future, the Investigating Officer is free to file appropriate application before the Jurisdictional Court to cancel the bail, and if such an application is filed, the Jurisdictional Court can pass appropriate orders in accordance with law, even though this bail order is passed by this Court. 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 BAIL APPL. NO. 4498 OF 2025 6 2025:KER:29151 to ensure that the accused has the opportunity of securing fair trial. 9. 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. "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 BAIL APPL. NO. 4498 OF 2025 7 2025:KER:29151 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) 10. 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 APPL. NO. 4498 OF 2025 8 2025:KER:29151 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 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. The petitioner shall appear before the Investigating Officer for interrogation as BAIL APPL. NO. 4498 OF 2025 9 2025:KER:29151 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. BAIL APPL. NO. 4498 OF 2025 10 2025:KER:29151 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. Sd/- P.V.KUNHIKRISHNAN JUDGE MSA BAIL APPL. NO. 4498 OF 2025 11 2025:KER:29151 APPENDIX OF BAIL APPL. 4498/2025 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE FIR IN CRIME NO. 10/2025 OF KVARATTI POLICE STATION, LAKSHADWEEP Annexure A2 TRUE COPY OF THE ORDER DATED 26.03.2025 IN CMP. NO. 37/2025 OF JUDICIAL FIRST CLASS MAGISTRATE, ANDROTH, UNION TERRITORY OF LAKSHADWEEP