AFSAL v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. KUNHIKRISHNAN
Judgment Date: 2022-05-06
Court Decision / Holding: The bail application is allowed. The petitioner is ordered to be released on bail with conditions as specified.
Final Disposition: Granted bail

Parties to the Case

Appellants / Petitioners

AFSAL

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam; SMT. Sreeja V, Senior Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• K.R. Prathish
• S. Unnikrishnan (Nellad)

Counsels for Respondents

• Public Prosecutor
• Smt. Sreeja V, Senior Public Prosecutor

Case Synopsis & Summary

This is a bail application filed by the accused, AFSAL, under Section 439 CrPC in Crime No.197/2022 of Thadiyittaparambu Police Station, Ernakulam. The case concerns offences under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 118(i) of the Kerala Police Act, and Sections 6(a), 6(b), and 24 of the Cigarette and Other Tobacco Products Prevention Act, 2003, alleged on 16.03.2022. The prosecution claims the petitioner sold prohibited tobacco products named ‘Hans’ to a minor (about 12 years old) near a Madrassa and had 2414 packs of the product, plus vehicles connected to the incident. The petitioner was in custody since 16.03.2022. Counsel for the petitioner argued innocence, false implication, and willingness to comply with conditions if bail is granted; the Public Prosecution opposed bail citing seriousness of the offence and potential for ongoing criminal activity. The court, while acknowledging the seriousness, emphasizes the bail principle that bail is the rule and jail is the exception, citing the Supreme Court in Chidambaram P. v. Directorate of Enforcement. Based on the facts, the court grants bail with conditions: a Rs.50,000 bond with two sureties of equal amount, regular appearance before the IO, restriction on leaving India, refraining from further offences, and reporting to the IO on specified days until final report. The order directs cancellation of bail if conditions are violated, and records a cautious but permissive stance toward release.

Provisions of Law Cited

Section 439 of Criminal Procedure CodeSection 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015Section 118(i) of Kerala Police ActSection 6(a), 6(b), 24 of the Cigarette and Other Tobacco Products Prevention Act, 2003

Legal Doctrines & Maxims

Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and false implication, asserts he has been in custody since 16.03.2022, and is ready to comply with reasonable bail conditions. He requests bail, highlighting that he would cooperate with investigation, would not leave the jurisdiction, and would appear for interrogation as directed. The counsel emphasizes the gravity of the offences but argues that the accused should not be denied opportunity for a fair trial given the presumption of innocence and his long custody since 16.03.2022. If required, he is prepared to accept conditions and periodic appearances, with the court’s oversight.

Contentions of Respondents

The Public Prosecutor opposes bail, citing the serious nature of the offences and the likelihood of involvement in other cases. The prosecution contends that releasing the petitioner on bail at this stage could undermine investigation and public interest, and seeks continued custody until charge-framing and final report, while permitting judicial oversight if bail is granted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited to reaffirm the principle that bail is the rule and jail is the exception to ensure the accused can have a fair trial.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 6[TH] DAY OF MAY 2022 / 16TH VAISAKHA, 1944 BAIL APPL. NO. 3465 OF 2022 ``` ``` CRIME NO.197/2022 OF Thadiyittaparamba Police Station, Ernakulam ``` ## **`PETITIONER:`** ``` AFSAL AGED 48 YEARS SON OF ABDUL RAHMAN, KUTTIKATTIL HOUSE, KAIPOORIKARA, VAZHAKULAM VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 686670 BY ADVS. K.R.PRATHISH S.UNNIKRISHNAN (NELLAD) ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 SMT.SREEJA V, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A. No.3465 of 2022 ------------------------------Dated this the 6[th] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code. 2. Petitioner is the accused in Crime No.197 of 2022 of the Thadiyittaparambu Police Station. The above case is registered against the petitioner alleging offences punishable under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 118 (i) of Kerala Police Act and Section 6(a), 6(b), 24 of the Cigarette and Other Tobacco Products Prevention Act, 2003. The petitioner is in custody from 16.03.2022. 3. The prosecution case is that on 16.03.2022 at 6.50 pm, the accused was found selling prohibited tobacco product namely ‘Hans’ from his shop situated near Hidayatul Muslimeen Madrassa, Kaipoorikara, to a minor ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 3 ``` child aged about 12 years and also found keeping in his possession 2414 packets of ‘Hans’ in the autorickshaw bearing registration No.KL-07-CG-9886 and a car bearing registration No.KL-40-P-9097, which were parked near his shop. Hence it is alleged that the accused committed offence. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the petitioner is in custody from 16.03.2022 onwards. The counsel for the petitioner submitted that the petitioner is falsely implicated in this case. The counsel for the petitioner submitted that the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is involved in other cases also. The Public Prosecutor also submitted that the petitioner may not be released on bail at this stage. It is true that the allegations against the petitioner ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 4 ``` are very serious. But the petitioner is in custody from 16.03.2022 onwards. The apprehension of the prosecution is that if the petitioner is released on bail, he will commit similar offences. If any case is registered against the petitioner subsequent to this order, the prosecution is free to file an application before the jurisdictional Court to cancel this bail and the jurisdictional Court will pass appropriate orders in it, even though the bail order is passed by this Court. There can be a direction to the petitioner to appear before the Investigating Officer on all Mondays, Wednesdays and Fridays till final report is filed. During the bail period, if there is any criminal activity on the part of the petitioner, I once again make it clear that the Investigating Officer is free to file an application for cancellation of the bail. With the above conditions, this bail application can be allowed. 5. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 5 ``` 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 in as much 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. 6. 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 ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 6 ``` 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/her 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 petitioner shall appear before the Investigating Officer on all Mondays, Wednesdays and Fridays at 10 am till final ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 7 ``` report is filed. 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. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** np ``` BAIL APPL. NO. 3465 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 3465/2022`** |**`PETITIONER’S`**|**`ANNEXURES:`**| |---|---| |**`Annexure A1`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`19.03.2022 OF JUDICIAL FIRST CLASS`**| ||**`MAGISTRATE COURT, KAKKANAD IN C.M.P NO.`**| ||**`638 OF 2022 IN CRIME NO. 197 OF 2022 OF`**| ||**`THADIYITTAPARAMBU POLICE STATION`**| |**`Annexure A2`**|**`TRUE COPY OF THE E COURT STATUS OF THE`**| ||**`PROCEEDINGS IN CRL MC NO.722 OF 2022 OF`**| ||**`DISTRICT &SESSIONS COURT ERNAKULAM DATED`**| ||**`29.03.2022`**| |**`Annexure A3`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`08.04.2022 OF ADDITIONAL DISTRICT &`**| ||**`SESSIONS COURT ERNAKULAM (FOR THE CASES`**| ||**`RELATING TO ATROCITIES & SEXUAL VIOLENCE`**| ||**`AGAINST WOMEN AND CHILDREN) IN C.M.P`**| ||**`NO.224 OF 2022`**| |**`Annexure A4`**|**`CERTIFIED ORDER DATED 27.04.2022 OF THE`**| ||**`ADDITIONAL DISTRICT AND SESSIONS JUDGE IN`**| ||**`C.M.P NO. 252 OF 2022 IN CRIME NO. 197 OF`**| ||**`2022 OF THADIYITTAPARAMBU POLICE STATION`**| |**`Annexure A5`**|**`TRUE COPY OF THE PETITIONER IDENTITY CARD`**| ||**`FOR PERSONS WITH DISABILITIES`**| |**`RESPONDENT’S`**|**`ANNEXURES: NIL`**|