Nishad v. State of Kerala

**BAIL APPL. NO. 4041 OF 2025** **1** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947** **BAIL APPL. NO. 4041 OF 2025** **CRIME NO.5/2025 OF Kollam E.E, Kollam** **AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.2895 OF** **2025 OF HIGH COURT OF KERALA** ## **PETITIONER/S:** **NISHAD AGED 35 YEARS S/O RAHIM, ZIYAD MANZIL, MYLAPPURE, THAZHUTHALA VILLAGE, KOLLAM, PIN - 691589** **BY ADVS. SREERAJ M.D. NEELANJANA NAIR** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP-HRITHWIK C S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 4041 OF 2025** **2** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 ## **P.V.KUNHIKRISHNAN, J** **–-------------------------------------** **B.A. No. 4041 of 2025** **-------------------------------------Dated this the 28[th] day of March, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.5/2025 of Kollam Excise Enforcement & Anti-Narcotic Special Squad, Kollam. The above case is registered against the petitioner alleging offences punishable under Sections 20(b)(ii)B and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') 3. The prosecution case is that the accused was found in possession of 1.930 kgs of Ganja. **BAIL APPL. NO. 4041 OF 2025** **3** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 26.01.2025. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner is involved in three other crimes. 6. The petitioner earlier filed a bail application before this Court as BA No. 2895/2025. After hearing both sides, this Court was not inclined to grant bail to the petitioner. At that stage, the counsel for the petitioner want to withdraw the bail application with liberty to move it again. This Court granted liberty to move the bail application after two weeks. Accordingly, the present bail **BAIL APPL. NO. 4041 OF 2025** **4** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 application is filed. Now, the petitioner is in custody for about 60 days. The final report is not filed as on today. If that is the case, the petitioner is entitled statutory bail. Therefore, the petitioner can be released on bail, after imposing stringent conditions. 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 opportunity of securing fair trial. 8. Moreover, in **Jalaluddin Khan v. Union of India [2024 KHC 6431]** , the Hon'ble Supreme Court **BAIL APPL. NO. 4041 OF 2025** **5** 2025:KER:26928 **==> 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 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 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 **BAIL APPL. NO. 4041 OF 2025** **6** 2025:KER:26928 **==> picture [58 x 58] intentionally omitted <==** ## 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 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.1,00,000/- **BAIL APPL. NO. 4041 OF 2025** **7** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 (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 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. **BAIL APPL. NO. 4041 OF 2025** **8** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 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. 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 **BAIL APPL. NO. 4041 OF 2025** **9** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26928 and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is violation of the above any conditions. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS