Ajnas v. State of Kerala and The Station House Officer, Nedumbassery Police Station

``` 2025:KER:29746 ``` ``` 1 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4892 OF 2025 ``` ``` CRIME NO.362/2023 OF NEDUMBASSERY POLICE STATION, Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.6926 OF 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` AJNAS AGED 28 YEARS S/O ABDUL MAJEED, KANIYAMKUDY HOUSE, KAIPRA, SREEMOOLANAGARAM KARA, CHOWARA VILLAGE, ERNAKULAM DISTRICT,, PIN - 683580 ``` ``` BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL M.MAHIN HAMZA ALWIN JOSEPH BENSON AMBROSE ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2025:KER:29746 ``` ``` 2 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** ``` 2THE STATION HOUSE OFFICER NEDUMBASSERY POLICE STATION, NEDUMBASSERY P.O, ERNAKULAM DISTRICT,, PIN - 683111 ``` ## **`OTHER PRESENT:`** ## **`SR PP-HRITHWIK C S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:29746 ``` ``` BAIL APPL. NO. 4892 OF 2025 ``` ``` 3 ``` **==> picture [57 x 57] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J. -------------------------------B.A. No.4892 of 2025** **---------------------------------------------Dated this the 07[th] day of April, 2025** ## **`ORDER`** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.362/2023 of Nedumbassery Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 20(b)ii(A), 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (' NDPS Act'). 3. The prosecution case is that, on 23.06.2023, at about 12:30pm., the Detecting Officer seized Ganja, MDMA and LSD weighing 786 grams, 11.42 grams and 0.391 grams respectively from a car owned by the petitioner. Hence, it is alleged that the accused committed the offences. Petitioner was arrested on 23.06.2023. Now, one year and nine months over. ``` 2025:KER:29746 ``` ``` 4 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 23.06.2023 and he is ready to abide any conditions if this Court grant him bail. The Public Prosecutor opposed the bail application and submitted that the petitioner is involved in one more case in which the allegation is that the petitioner was found in possession of intermediate quantity of Ganja. 6. The petitioner earlier filed BA No.1965/2025 before this Court. This Court disposed that bail application with following directions: 1. The petitioner is free to file a bail application before the Jurisdictional Court within two weeks raising all the contentions raised in this bail application. 2. If such a bail application is received, the Jurisdictional Court will consider the same and pass appropriate orders in it, in the light of the principle laid down by the Apex Court in ``` 2025:KER:29746 ``` ``` 5 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** ## **Ankur Chaudhary v. State of Madhya** **Pradesh** [2024 Live Law (SC) 416], **Nitish Adhikary @ Bapan v. The State of West** **Bengal** [SLP to Appeal (Crl.) No.5769 of 2022], **Hasanujjaman and others v. The State of West Bengal** [SLP to Appeal (Crl.) No.3221 of 2023] and also the principle laid down by this Court in **Shuaib A.S v. State of Kerala** [2025 SCC Online 618], within two weeks from the date of receipt of the application. Accordingly the petitioner filed a fresh bail application before the trial court. As per Annexure-5 order, the learned Sessions Judge dismissed the bail application. A perusal of Annexure-5 order would show that there is no Presiding Officer in the jurisdictional court and the bail application is considered by the officer who is in charge of that particular court. The learned Judge observed that the delay in concluding the trial is not because of anything attributed to the prosecution, but it is ``` 6 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:29746` ## **`BAIL APPL. NO. 4892 OF 2025`** because there is no Presiding Officer in the court. That itself shows that the liberty of the petitioner is infringed because there is no Presiding Officer in that particular court and the petitioner is continuing to be under trial prisoner. 7. In **Ankur Chaudhary's case** (Supra) the Apex Court observed like this:- “6. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 8. In **Hasanujjaman's case** (supra), the Apex Court considered a case in which the accused were in custody for one year and four months. In that case also the contraband seized is commercial quantity. Even then the Apex Court granted bail. 9. In **Nitish Adhikary's case** (supra) the Apex Court ``` 2025:KER:29746 ``` ``` 7 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** ## observed like this:- “During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.” Keeping in mind the above principle, this Court considered the bail application. The petitioner is in custody for one year and nine months. The trial is not even started because there is no Presiding Officer in that particular court. In such circumstances, in the light of the principle laid down in the above decisions, the rigour under Section 37 of the NDPS Act can be relaxed and the petitioner can be released on bail. 10. 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 ``` 2025:KER:29746 ``` ``` BAIL APPL. NO. 4892 OF 2025 ``` ``` 8 ``` **==> picture [57 x 57] intentionally omitted <==** is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. 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 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 ``` 2025:KER:29746 ``` ``` BAIL APPL. NO. 4892 OF 2025 ``` ``` 9 ``` **==> picture [57 x 57] intentionally omitted <==** denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 12. 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".” 13. Considering the dictum laid down in the above decision and considering the facts and circumstances of this ``` 2025:KER:29746 ``` ``` 10 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4892 OF 2025`** 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 cooperate 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 ``` 2025:KER:29746 ``` ``` BAIL APPL. NO. 4892 OF 2025 ``` ``` 11 ``` **==> picture [57 x 57] intentionally omitted <==** 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 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** jv