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# `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. 2467 OF 2024 ``` ``` CRIME NO.103/2024 OF Nattukal Police Station, Palakkad ``` ## `PETITIONER:` ``` HASHIM, AGED 26 YEARS S/O. SHAJI, PALLIKKATTUTHODI HOUSE, ALANALLUR P.O., KANNAMKUNDU, PALAKKAD DISTRICT, PIN - 678601 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI RAYEES P. M.MAHIN HAMZA ALWIN JOSEPH BENSON AMBROSE ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER, NATTUKAL POLICE STATION, PALAKKAD DISTRICT,, PIN - 678554 ``` ``` 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: ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 2 ``` ## `ORDER` ``` The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.103/2024 of the Nattukal Police Station, Palakkad, registered against the accused for allegedly committing the offence punishable under Section 22(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was arrested on 07.03.2024. ``` ``` 2. The crux of the prosecution case is that; on 07.03.2024, at around 19.40 hours, the ``` ``` detecting officer intercepted the motorcycle ``` ``` ridden by the accused and conducted a search on him. Consequently, 0.59 gms of MDMA was seized ``` ``` from his body. The accused was arrested with the contraband article then and there at the spot. Thus, the accused has committed the above offence. ``` ``` 3. Heard; Sri.P.Mohamed Sabah, learned ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 3 ``` ``` counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. ``` ``` 4. The learned counsel appearing for the ``` ``` petitioner submitted that the petitioner is totally innocent of the accusations levelled ``` ``` against him. He has been falsely implicated in the ``` ``` crime. There is no material to show that the contraband was seized from the body of the petitioner. In any given case, the petitioner has been in judicial custody from 07.03.2024, the ``` ``` investigation in the case is practically complete and recovery has been effected. Moreover, the ``` ``` contraband involved in the case is of an ``` ``` intermediate quantity. Hence, the petitioner may be released on bail. ``` ``` 5.The learned Public Prosecutor opposed the application. He submitted that the petitioner is a ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 4 ``` ``` person with criminal antecedents. The petitioner is also involved in Crime No.6 of 2023 of the Sulthan Bathery Excise Range Office for committing ``` ``` a similar offence. If the petitioner is released on bail, there is a likelihood of him committing similar offence. Moreover, the investigation in the case is not complete. Nevertheless, he did not dispute the fact that the contraband involved in the case is of an intermediate quantity, the petitioner has been in judicial custody for the last 50 days and the investigation in the case is practically complete. ``` ``` 6.The learned counsel for the petitioner refuted the submissions of the learned Public ``` ``` Prosecutor and submitted that the petitioner has already been enlarged on bail in Crime No.6 of 2023 of the Sulthan Bathery Excise Range Office as per the order of the Special Judge, NDPS Court, ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 5 ``` ``` Wayanad, in Criminal M.C.No.221 of 2023. That case was also allegedly registered against the ``` ``` petitioner for having committed the offence of being in possession of an intermediate quantity of MDMA. Moreover, now as per the Chemical Analysis ``` ``` Report, it is found that the contraband involved ``` ``` in the case is Methamphethamine and not MDMA. ``` ``` Hence, the petitioner was released on bail. ``` ``` 7.On an evaluation of the materials on ``` ``` record, it can be seen that the prosecution was lodged against the petitioner for having been found in possession of 0.59 gms of MDMA. It is now ``` ``` stated that the contraband is Methamphethamine and ``` ``` not MDMA. Moreover, the contraband involved in the ``` ``` case is of an intermediate quantity, the ``` ``` petitioner has been for judicial custody for the ``` ``` last 50 days and the investigation in the case is practically complete. ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 6 ``` ``` 8. 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 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. ``` ``` 9.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. ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 7 ``` ``` 10.InState 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 their right to life guaranteed ``` ``` under Article 21 of the Constitution. ``` ``` 11.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. ``` ``` 12. The principle that bail is the rule and ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 8 ``` ``` jail is an exception, which 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. ``` ``` 13. Afterbestowing ananxious ``` ``` consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and especially on comprehending the fact that the contraband involved in the case is of an ``` ``` intermediate quantity, that the petitioner has been in judicial custody for the last 50 days, the ``` ``` investigation in the case is practically complete and recovery has been effected, I am of the ``` ``` definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 9 ``` ``` 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: ``` - `(i) The petitioner shall appear before the` ``` Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.103 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 ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 10 ``` ``` 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 the date of execution of the bond; ``` - `(v) In case of violation of any of the` ``` conditions mentioned above, the jurisdictional ``` ``` court shall be empowered to consider the ``` ``` application for cancellation of bail, if any ``` ``` filed, and pass orders on the same, in accordance with law. ``` - `(vi) Applications for deletion/modification of` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 11 ``` ``` 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 ``` ``` SAS ``` ``` BAIL APPL. NO. 2467 OF 2024 ``` ``` 12 ``` ## `APPENDIX OF BAIL APPL. 2467/2024` ``` PETITIONER’S ANNEXURES: ``` ``` Annexure 1TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 103 OF 2024 OF NATTUKAL POLICE STATION, PALAKKAD DISTRICT Annexure 2TRUE COPY OF ORDER DATED 15.03.2024 IN C.M.P. NO. 627/2024 OF THE HONORABLE JUDICIAL FIRST- CLASS MAGISTRATE COURT, MANNARKKAD ```