Kerala High Court
Sameer.H vs State Of Kerala on 3 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 7176 OF 2024 1
2025:KER:8294
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
BAIL APPL. NO. 7176 OF 2024
CRIME NO.1000/2023 OF Perinthalmanna Police Station, Malappuram
PETITIONER/S:
SAMEER.H,
AGED 27 YEARS
S/O ABDUL HUSSAIN,SAMEER HOUSE, LAKSMIPURAM,HAL 11
STAGE, HALASURU, BANGALORE NORTH, BANGALORE,
KARNATAKA., PIN - 560038
BY ADVS.
SAM ISAAC POTHIYIL
S.SURAJA
MUHAMMED SUHAIR C.A
RAMU SUBHASH
KARAN MATHEW
ANANTHAKRISHNAN R.
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 STATION HOUSE OFFICER,
PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT,
PIN - 679322
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 7176 OF 2024 2
2025:KER:8294
P.V.KUNHIKRISHNAN, J
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B.A.No.7176 of 2025
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Dated this the 3rd day of February, 2025
ORDER
This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.
2. The petitioner is the 3rd accused in Crime No.1000 of 2023 of Perinthalmanna Police Station, Malappuram District, registered alleging offences punishable under Sections 20(b)(ii) C r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act. The petitioner was arrested on 27.07.2023.
3. The prosecution case is that the accused Nos.1 and 2 were found in possession of 165.9 kg. Of Ganja and the same was purchased by the 3rd accused with the aid of accused Nos.4 and 5. Hence it is alleged that the petitioner has committed the above offences.
4. Heard learned counsel for the petitioner and the Public Prosecutor.
5. The learned Public Prosecutor opposed the bail application.
6. When this bail application came up for BAIL APPL. NO. 7176 OF 2024 3 2025:KER:8294 consideration, this Court directed the Registry to get a report from the jurisdictional court as to the time required to dispose the case.
7. The report submitted by the learned Sessions Judge is extracted hereunder:
"With reference to the above, it is submitted that SC 450/2024 stands posted to 16.01.2025 for furnishing copies of some of the documents to the accused.
"It is further submitted that charge was framed in the case on 26.12.2024. There are 38 witnesses cited by the prosecution. This Court is giving priority for disposal of cases in which accused are in judicial custody, irrespective of the fact whether the case is included in the target for disposal or not. Considering the above facts, it is submitted that this case can be disposed of within six months."
8. The Hon'ble Apex Court observed that the failure to conclude the trial within a reasonable time resulting in prolonged incarceration of under trial prisoners, will violate fundamental right guaranteed under the Article 21 of the Constitution of India and in such circumstances, the liberty will override the statutory embargo created under Section 37 of the NDPS Act. Moreover, this Court also considered in Shuaib.A.S v. State of Kerala, the same is extracted:
"It is worthwhile to note that Section 37 of the NDPS Act is a special provision which would deal with grant of bail to the accused persons where commercial quantity of contraband was involved. But as per the decision cited by the Apex Court, it was observed that, BAIL APPL. NO. 7176 OF 2024 4 2025:KER:8294 failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act be considered. Going by the observation of the Apex Court, in cases where prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, it overrides Section 37(1)(b) of the NDPS Act. In order to hold that Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act, the delay in trial at the instance of the prosecution is the `decisive factor'. That is to say, the delay should be the sole contribution of the prosecution and the accused has no role in getting the matter prolonged, in any manner. In cases, where dilatory tactics even in remote possibility, negligible liability, bare minimum or mere impossibility is the volition, hand out or benefactum of the accused, it could not be held in such cases that personal liberty under Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act. Thus in cases where commercial quantity of contraband is involved and the accused continues in custody for years, say for example, for more than 3 years in the instant case, where the laches on the part of the prosecution alone is the reason in finalising the trial, continuous incarceration shall be addressed so as to protect liberty of an individual embodied under Article 21 of the Constitution, which overrides the embargo created under Section 37(1)(b) of the NDPS Act. That is to say, in a case where trial could not be completed due to the absolute laches on the part of the prosecution, bail plea at the instance of the accused on the said ground is liable to be considered in suppression of the rider under Section 37(1)(b) of the NDPS Act, in tune with Article 21 of the Constitution of India."
9. In the light of the above principle, I am of the BAIL APPL. NO. 7176 OF 2024 5 2025:KER:8294 considered opinion that the petitioner can be released on bail in this case. Admittedly, the petitioner is in custody for about 1 year and six months. As per the report of the Trial Court, it will take another six months for completing the trial. In such circumstances, I am of the considered opinion that, in the fact and circumstances of the case, embargo under Section 37 can be relaxed.
10. 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.
11. 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 Court and the High Court did not consider the material in the charge sheet objectively.
Perhaps the focus was more on the activities BAIL APPL. NO. 7176 OF 2024 6 2025:KER:8294 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)
12. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that:
BAIL APPL. NO. 7176 OF 2024 7
2025:KER:8294 "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".
13. 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.
2. The Petitioner shall appear before the Investigating Officer for interrogation as and when required. The Petitioners shall co-
operate with the investigation and shall not, BAIL APPL. NO. 7176 OF 2024 8 2025:KER:8294 directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them 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 they are accused, or suspected, of the commission of which they are suspected.
5. 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 jm/ BAIL APPL. NO. 7176 OF 2024 9 2025:KER:8294 APPENDIX OF BAIL APPL. 7176/2024 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF ORDER DATED 28.06.2024 PASSED BY THIS THIS HON'BLE COURT IN BA NO 2928/2024 Annexure A 2 THE TRUE COPY OF THE OLX ADVERTISEMENT PUBLISHED BY THE PETITIONER Annexure A3 THE TRUE COPY OF THE BANK STATEMENT BY THE PETITIONER IS PRODUCED Annexure A4 THE TRUE COPY OF THE CMP 49/2024 IS FILED BY THE PUBLIC PROSECUTOR UNDER SECTION 36(A) (4) OF NDPS ACT Annexure A5 ORDER DATED 10-01-2024 IN BAIL APPL.11378/2023 ON HIGH COURT