Abhaya Palka and Manaas Nayik v. State of Kerala and The Excise Range Officer, Aluva

``` 2025:KER:31701 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 11[TH] DAY OF APRIL 2025 / 21ST CHAITHRA, 1947 BAIL APPL. NO. 5316 OF 2025 ``` ``` CRIME NO.1/2025 OF Aluva Excise Range Office, Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN SC NO.258 OF 2025 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR ``` ## **`PETITIONER/S:`** - **`1 ABHAYA PALKA AGED 24 YEARS S/O RAMAMOORTHI PALKA, NALAHGATT POST OFFICE, BACHIPANKA VILLAGE, ADAVA TALUK, GAJAPATI DISTRICT, ORISSA, PIN - 761207`** - **`2 MANAAS NAYIK AGED 30 YEARS`** ``` S/O SIMAN NAYIK,NALAGATT POST OFFICE, BACHIPANKA VILLAGE, ADAVA TALUK, GAJAPATI DISTRICT, ORISSA, PIN - 761207 ``` ``` BY ADVS. AMEER SALIM NESILI NAZEER A.ARUNKUMAR (A-1907) ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE EXCISE RANGE OFFICER EXCISE RANGE OFFICE, ALUVA, PIN - 683101`** ``` 2 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` ## **`SRI G SUDHEER, PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` **==> picture [57 x 58] intentionally omitted <==** `3` **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.5316 of 2025** **------------------------------Dated this the 11[th] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS). 2. Petitioners are the accused in Crime No.1/2025 of Aluva Excise Range. The above case is now pending as Sessions Case No.258/2025 before the Addl. District and Sessions Judge-I, North Paravur, The above case is charge sheeted alleging offences punishable under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). 3. The prosecution case is that; on 03.01.2025, the while Police party conducting patrolling duty near Aluva KSRTC bus stand, Aluva, the accused persons were found in possession of 9.324 kilograms of dried ganja. Hence, it is alleged that the accused committed the offence. **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` `4` 4. Heard counsel for the petitioners and the Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are in custody from 03.01.2025. Petitioners are ready to abide by any conditions, if this Court grants them bail. 6. Public Prosecutor opposed the bail application. He also submitted that the petitioners are from Odisha and if they are released on bail, they will not be available for trial. But, he conceded that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioners. At this stage, the counsel for the petitioners submitted that, petitioners are ready to offer two local sureties from Ernakulam District. The same is recorded. I make it clear that, this is not an order from the Court, but it is a voluntary submission by the counsel on behalf of the petitioners. 7. This Court considered the contentions of the petitioners and the Public Prosecutor. It is true that **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` `5` allegation against the petitioners are serious. But, the quantity seized is only intermediate quantity. Hence, the rigour under Section 37 of the NDPS Act is not applicable. No criminal antecedent is alleged against the petitioners. The petitioners are in custody from 03.01.2025. In the facts and circumstances of the case, I think the petitioners can be released on bail after imposing stringent conditions. But, I make it clear that, if the petitioners are 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, 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 ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` **==> picture [57 x 58] intentionally omitted <==** `6` exception so as 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 ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 7 ``` are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modifcation that the bail can be granted if the conditions in the statute are satisfed. 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 ``` 2025:KER:31701 ``` **==> picture [57 x 58] intentionally omitted <==** ``` BAIL APPL. NO. 5316 OF 2025 ``` ``` 8 ``` 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". 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. Petitioners 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. ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` **==> picture [57 x 58] intentionally omitted <==** `9` Petitioners shall offer two local sureties from Ernakulam District. 2. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners 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. Petitioners shall not leave India without permission of the jurisdictional Court. 4. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 5. The observations and findings in this order is only for the purpose of deciding ``` 2025:KER:31701 ``` ``` BAIL APPL. NO. 5316 OF 2025 ``` **==> picture [57 x 58] intentionally omitted <==** `10` 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 petitioners, 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** SSG