Asim Changmai v. State of Kerala

``` 2025:KER:32070 ``` **==> picture [58 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. 5169 OF 2025`** ``` CRIME NO.35/2025 OF Kottayam E.E, Kottayam ``` ## **`PETITIONER/S:`** ``` ASIM CHANGMAI AGED 35 YEARS S/O NIRMAL CHANGMAI, LAKTAKIYA, GHUNASUTI, DHEMAJI DISTRICT, ASSAM,, PIN - 787032 ``` ``` BY ADVS. VISHNU CHANDRAN MUHAMMED NIYAS K.H. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SRI NOUSHAD K A, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.5169 OF 2025 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32070 ``` `2` **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.5169 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. Petitioner is the accused in Crime No.35/2025 of Excise and Enforcement Special Squad, Kottayam, registered alleging offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 3. The prosecution case is that, on 13.03.2025, at about 11.15 P.M the accused was found in possession of 1.41 Kg of Ganja. Petitioner was arrested on 13.03.2025. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from. 13.03.2025. Petitioner is ready to abide by any conditions, if this Court grants him **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32070 ``` ``` BAIL APPL. NO.5169 OF 2025 ``` ``` 3 ``` bail. 6. Public Prosecutor opposed the bail application. But, he conceded that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioner. He also submitted that the petitioner is from Assam and if he is released on bail, he will not be available for trial. At this stage, the counsel for the petitioner submitted that, petitioner is ready to offer local sureties from Kottayam 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 petitioner. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that allegation against the petitioner is 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 petitioner. The petitioner is in custody from 13.03.2025. In the facts and circumstances of the **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32070 ``` ``` BAIL APPL. NO.5169 OF 2025 ``` ``` 4 ``` case, I think the petitioner can be released on bail after imposing stringent conditions. But, I make it clear that, if the petitioner is 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 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 ``` 2025:KER:32070 ``` ``` BAIL APPL. NO.5169 OF 2025 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** ## 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 **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:32070` ``` BAIL APPL. NO.5169 OF 2025 ``` ``` 6 ``` 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 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 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32070 ``` ``` BAIL APPL. NO.5169 OF 2025 ``` `7` 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. 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. Petitioner shall offer local sureties from Kottayam District. ``` 2025:KER:32070 ``` ``` BAIL APPL. NO.5169 OF 2025 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 8 ``` 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 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 ``` 2025:KER:32070 ``` **==> picture [58 x 58] intentionally omitted <==** ``` BAIL APPL. NO.5169 OF 2025 ``` `9` 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** SSG