Ashkar v. State of Kerala

BA No.4960 of 2025 1 ``` 2025:KER:30718 ``` **==> picture [57 x 58] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 BAIL APPL. NO. 4960 OF 2025 ``` ``` CRIME NO.209/2025 OF Cumbummettu Police Station, Idukki ``` ## **`PETITIONER(S)/ACCUSED:`** ``` ASHKAR AGED 24 YEARS, S/O ABDUL KHADER KAMBI VALAPPU HOUSE VANDANAM ALAPPUZHA, PIN – 688 005 ``` ``` BY ADVS. SHYAM KUMAR M.P MUHAMMED NAZIM K.S. ``` ## **`RESPONDENT( S )/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ## **`BY ADV.:`** ``` SR PP - NOUSHAD K A ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No.4960 of 2025 2 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30718` **P.V.KUNHIKRISHNAN, J. ------------------------------------------BA No.4960 of 2025 -------------------------------------------Dated this the 09[th] 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. The petitioner is an accused in Crime No.209/2025 of Cumbummettu Police Station, Idukki. The above case is registered against the petitioner alleging offence punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substance (NDPS) Act, 1985. 3. The prosecution case is that, on 10.03.2025, the accused was found in possession BA No.4960 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` of 105 gms of Hashish oil. Hence, it is alleged that the accused committed the offence. The petitioner was arrested on 10.03.2025. 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 10.03.2025. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grants him bail. 6. The Public Prosecutor opposed the bail application. But, the Public Prosecutor submitted that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioner. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true BA No.4960 of 2025 4 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` that the allegations against the petitioner is serious. But, the contraband seized from the petitioner is an 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 10.03.2025. 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 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 BA No.4960 of 2025 5 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` 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 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 BA No.4960 of 2025 6 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:30718` 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 denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) BA No.4960 of 2025 7 ``` 2025:KER:30718 ``` **==> picture [57 x 58] intentionally omitted <==** ## 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 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 BA No.4960 of 2025 8 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` 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.1,00,000/- (Rupees One Lakh 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_ BA No.4960 of 2025 9 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` _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 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_ BA No.4960 of 2025 10 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:30718 ``` ## _**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_ `w` _ith law, even though the bail is granted by this 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/-** nvj **P.V.KUNHIKRISHNAN JUDGE**