JIYARUL SEKH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25**[TH] **DAY OF APRIL 2024 / 5TH VAISAKHA, 1946** ## **BAIL APPL. NO. 3385 OF 2024** **CRIME NO.57/2024 OF Thenhipalam Police Station, Malappuram** ## **PETITIONER:** **JIYARUL SEKH AGED 22 YEARS, S/O HASIBUL SEKH, GIDHAGRAM, PIRATALPARA, BARDHMAN KATHWA, KOLKATHA, NORTH DIVISON, WEST BENGAL, PIN - 700008** **BY ADVS. P.MOHAMED SABAH, LIBIN STANLEY, SAIPOOJA SADIK ISMAYIL , R.GAYATHRI, M.MAHIN HAMZA, RAYEES P. ALWIN JOSEPH, BENSON AMBROSE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 THE STATION HOUSE OFFICER TENHIPALAM POLICE STATION, TENHIPALAM, MALAPPURAM, DISTRICT, PIN - 673636** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA 3385/2024 -2- ## **O R D E R (Dated this the 25[th] day of April 2024)** The application is filed under Section 439 of the Criminal Procedure Code, 1973, by the sole accused in Crime No.57 of 2024 of Tenhipalam Police Station, Malappuram District, registered against the accused for allegedly committing offences punishable under Sections 20(b) (ii) (B) and 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 13.01.2024. 2. The gist of the prosecution case is that: on 13.01.2024, at around 23.15 hours, the accused was found in possession of 3.050 kilograms of ganja and 23.750 grams of brown sugar from a room in Peruvalloor Village. The accused was arrested with the contraband articles, then and there at the spot. Thus, the accused have committed the above offences. BA 3385/2024 -3- 3. Heard; Sri.P.Mohamed Sabah, learned counsel for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of the First Information Report would show that none of the offences will be attracted against the petitioner. In any given case, the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and Final Report has been laid. Moreover, the contraband involved in the case is of an intermediate quantity, the petitioner does not have any criminal antecedents. Hence, the petitioner may be released on bail. 5. Learned Public Prosecutor opposed the application. He submitted that the petitioner is a native of West Bengal. If the petitioner is released on bail, there is BA 3385/2024 -4- every likelihood of him fleeing from justice and also committing similar offences. Hence, the application may be dismissed. Nonetheless, the learned Public Prosecutor, did not dispute the fact that the investigation in the case is complete and Final Report has been laid, and further, the petitioner does not have any criminal antecedents. 6. The prosecution allegation against the petitioner is that he was found in possession of 3.05 kilograms of ganja and 23.75 grams of brown sugar. Indisputably, the said contraband articles are of an intermediate quantity. The petitioner has been in judicial custody since 13.01.2024, which is more than 100 days, the investigation is complete and final report has been laid. Furthermore, the petitioner does not have any criminal antecedents. 7. In **Sanjay Chandra v. CBI** , [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the BA 3385/2024 -5- presumption of innocence, until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **Dataram Singh v. State of U.P.,** [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. In **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of BA 3385/2024 -6- their right to life guaranteed under Article 21 of the Constitution. 10. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 11. The principle that bail is the rule and jail is an exception, is the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the BA 3385/2024 -7- materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 100 days, the investigation of the case is complete and final report has been filed, the petitioner is a person without criminal antecedents and merely because of the fact that the petitioner does not have roots in the State of Kerala, the same cannot be treated as a ground to deny bail to him as per the law laid down by the Honourable Supreme Court in **Hussainara Kahtoon v. Home Secretary, State of Bihar,** [1980 (1) SCC 98], I am inclined to allow the bail application, but subject to stringent conditions: In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 court having jurisdiction, which shall be subject to the following conditions: BA 3385/2024 -8- - (i) The petitioner shall appear before the Investigating Officer on every alternative Saturday between 9 a.m. and 11 a.m till the finalisation of the proceedings in Crime No.57 of 2024. He shall also appear before the Investigating Officer as and when required; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on BA 3385/2024 -9- the date of execution of the bond; - (v) The petitioner shall furnish his mobile number and present address to the Investigating Officer as well as the jurisdictional court. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. Sd/- **C.S.DIAS JUDGE** JS BA 3385/2024 -10- ## **APPENDIX OF BAIL APPL. 3385/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.57 OF 2024 OF TENHIPALAM POLICE STATION, MALAPPURAM DISTRICT Annexure 2 TRUE COPY OF THE ORDER DATED 26.03.2024 PASSED BY THE SPECIAL COURT FOR SC/ST ACT & NDPS ACT CASES, MANJERI IN CRL.M.P. NO. 306/2024**