Afsal v Union of India

BAIL APPL. NO. 4413 OF 2025 1 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 3[RD] DAY OF APRIL 2025 / 13TH CHAITHRA, 1947** ## **BAIL APPL. NO. 4413 OF 2025** **CRIME NO.98/2025 OF AIR CUSTOMS, CALICUT INTERNATIONAL** ## **AIRPORT, Kozhikode** **AGAINST THE ORDER/JUDGMENT DATED 24.03.2025 IN CMP NO.1437 OF 2025 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** ## **PETITIONER/S:** **AFSAL AGED 25 YEARS S/O. ALIKUTTY, THARAMMAL HOUSE, KODIYATHUR.P.O., MUKKAM, KOZHIKODE, PIN - 673602** **BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ABDUSSAMAD K.K.** ## **RESPONDENT/S:** **UNION OF INDIA SUPERINTEND OF CUSTOMS, AIR CUSTOMS, CALICUT INTERNATIONAL AIRPORT, KOZHIKKODE REPRESENTED BY** BAIL APPL. NO. 4413 OF 2025 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 **PROSECUTOR FOR AIR CUSTOMS, ERNAKULAM, PIN - 673001** ## **OTHER PRESENT:** ## **SREELAL N WARRIER-SPL PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4413 OF 2025 3 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** **B.A. No. 4413 of 2025** **-------------------------------------Dated this the 3[rd] 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 the accused in OS No.98/2025 of Air Customs, Calicut International Airport, Kozhikode. The above case is registered against the petitioner alleging offences punishable under Section 135 of the Customs Act. 3. The prosecution case is that, on 10.03.2025, the petitioner was found in possession of gold weighing 1,117.83 gms valued worth Rs.97,13,943/in the domestic market and Rs.90,98,018/- in the BAIL APPL. NO. 4413 OF 2025 4 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 international market, it is further alleged that on the basis of confession that earlier on 08.03.2025, handed over the gold weighing 500 gms and thereby the accused committed the offences, 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 10.03.2025 onwards. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. The Special Public Prosecutor who appeared for the respondents seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is the ground staff in the airport. The allegation against the petitioner is very serious. 6. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that BAIL APPL. NO. 4413 OF 2025 5 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 the allegation against the petitioner is very serious. But, the fact remains that the petitioner is in custody from 10.03.2025. Indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances of this case, I think the petitioner can be released on bail, after imposing stringent conditions. There can be a direction to the petitioner to appear before the investigating officer on all Mondays at 10.00 am for a period of one month. 7. 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 BAIL APPL. NO. 4413 OF 2025 6 2025:KER:28512 **==> picture [58 x 57] intentionally omitted <==** ## opportunity of securing fair trial. ## 8. 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 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 BAIL APPL. NO. 4413 OF 2025 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 9. 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 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".” 10. Considering the dictum laid down in the above decision and considering the facts and BAIL APPL. NO. 4413 OF 2025 8 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 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 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 BAIL APPL. NO. 4413 OF 2025 9 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 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. 6. The petitioner shall appear before the investigating officer on all BAIL APPL. NO. 4413 OF 2025 10 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28512 Mondays at 10.00 am, for a period of one month. 7. If of the above any 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** SKS