BA No.5083 of 2025 1 2025:KER:31280 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 BAIL APPL. NO. 5083 OF 2025 CRIME NO.185/2025 OF Thrikkakara Police Station, Ernakulam PETITIONER(S)/1ST ACCUSED: ROHAN SEKH AGED 21 YEARS S/O IMDADUL SEKH SAHEBNAGAR MURSHIDABAD WEST BENGAL, PIN - 742306 BY ADV SHYAM KUMAR M.P RESPONDENT(S)/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV.: SRI HRITHWIK C S, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BA No.5083 of 2025 2 2025:KER:31280 P.V.KUNHIKRISHNAN, J. ------------------------------------------- BA No.5083 of 2025 -------------------------------------------- Dated this the 10th day of April, 2025 O R D E R This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 2. Petitioner is an accused in Crime No.185/2025 of Thrikkakara Police Station, Ernakulam. The above case is registered against the petitioner alleging offence punishable under Sections 20(b)(ii)B and 29 of the Narcotic Drugs and Psychotropic Substance (NDPS) Act, 1985. 3. The prosecution case is that, on 18.03.2025, the accused was found in possession BA No.5083 of 2025 3 2025:KER:31280 of 4.966 Kgms of Ganja. Hence, it is alleged that the accused committed the offence. The petitioner was arrested on 18.03.2025. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 18.03.2025. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. He submitted that the petitioner is from the State of West Bengal and if he is released on bail, he will not be available for trial. At this stage, the counsel for the petitioner submitted that the petitioner is ready to furnish local sureties from the State of Kerala and the BA No.5083 of 2025 4 2025:KER:31280 same is recorded. I make it clear that, this is not an order from this Court, but this is a voluntary submission by the counsel for the petitioner on behalf of the petitioner. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. But, the contraband seized from the petitioner is intermediate quantity. If that be the case, the rigour under Section 37 of the NDPS Act is not attracted. Moreover, the petitioner is in custody from 18.03.2025. Considering the facts and circumstances of the case and also considering the period of detention, I think, bail can be granted to the petitioner on stringent conditions. But, I make it clear that, if the petitioner is involved in any similar offence in BA No.5083 of 2025 5 2025:KER:31280 future, the Investigating Officer is free to file an application before the jurisdictional court to cancel the bail and if such an application is filed, the jurisdictional court is free to pass appropriate orders in it, in accordance with law, even though this 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 to ensure that the accused has the opportunity of BA No.5083 of 2025 6 2025:KER:31280 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 grant of bail in the relevant statutes, the same rule holds good with only modification BA No.5083 of 2025 7 2025:KER:31280 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. 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 BA No.5083 of 2025 8 2025:KER:31280 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.2,00,000/- (Rupees Two Lakhs only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. The submission of the petitioner that he will offer local sureties from State of Kerala is BA No.5083 of 2025 9 2025:KER:31280 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 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 BA No.5083 of 2025 10 2025:KER:31280 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 BA No.5083 of 2025 11 2025:KER:31280 Court. The prosecution is at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above condition. Sd/- P.V.KUNHIKRISHNAN nvj JUDGE