Abhilash Raghavan @ Kannan vs State Of Kerala

P.V.Kunhikrishnan, J.

This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.

Petitioner is the 2nd accused in Crime No.312/2024 of Railway Police Station, Kottayam, now pending as SC (NDPS) No.80/2024 on the file of the Court of Special Judge for NDPS Act Cases, Thodupuzha. The offences alleged are punishable under Sections 20(b)(ii)B, 27A and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act).

The prosecution case is that, on 11.09.2024, Sub Inspector of Kottayam Railway Police Station seized 1.012 kilograms of ganja from the possession of the accused No.1. Thereafter, on the basis of the confession statement of the accused No.1, the petitioner herein, was arrested alleging conspiracy and financial aid with accused No.1. Hence the offence alleged against the petitioner includes Section 27A of the NDPS Act.

Heard counsel for the petitioner and the Public Prosecutor.

The counsel for the petitioner submitted that even if the entire allegations are accepted, the quantity of Ganja seized from the 1st accused is small quantity. There is no seizure from the petitioner who is the 2nd accused. The counsel takes me through the seizure mahazar. The Public Prosecutor opposed the bail application.

Annexure-3 is the seizure mahazar in this case. It will be better to extract the relevant portion of Annexure-3:

"കവ  ഉ പ്പെ ടെപെ ഇലക്ട്ര ോണിക്സ് ത്രാസി  തൂക്കി ന്ട്ര ോക്കിയതി  1.025 കില്ട്രലോഗ്രാം കാണിക്കുകയും കവറി  ഉണ്ടായിരുന്ന കഞ്ചാവ് ാത്രംമ മറ്റെ%ൊരു പ്ലാസ്റ്റിക് കവറി  ഇട്ട് ഇലക്ട്ര ോണിക് ത്രാസി  തൂക്കി ന്ട്ര ോക്കിയതി  1.012 കില്ട്രലോഗ്രാം എന്ന് ാണിക്കുകയുംക കഞ്ചാവ്പ്പെ*ൊതിയാ  ഉപയ്ട്രയോഗിച്ച വെപെവള്ള നിറത്തി  ഉള്ള പ്ലാസ്റ്റിക് കവ  തൂക്കിന്ട്ര ോക്കിയതി  .013 ഗ്രാം എന്ന് ാണിക്കുകയുംക ആയത് സാക്ഷികളെപെ2 കാണിച്ച് ബ്ട്ര3ോധ്യപ്പെ ടുത്തിയ ശേട്ര7ഷം കഞ്ചാവ്നിറച്ച പ്ലാസ്റ്റിക് കവ  ബ്രൗ  പേട്ര*പറി  പ്പെ*ൊതിഞ്ഞ് ഞാനും സാക്ഷിയും പ്രതിയും പേട്ര*ര് എഴുതി പ്ഒലേട്രലബ  പതിച്ച് നൂല്ക്പെകൊണ്ട് കെപെകട്ടി.”

From the above it is clear that the total contraband seized including the cover is 1.025 kg. Thereafter the Detecting Officer put it in another plastic cover and weighed the same. Then it is found that it is 1.012 kg. Thereafter the plastic cover was weighed separately and then it was 0.013 gm. If that is the case, according to the petitioner, it is a small quantity. I think there is force in the above argument. But I make it clear that such an observation is made only for the purpose of considering this bail application. The prosecution is free to adduce appropriate evidence at the time of trial. It is true that some criminal antecedents are alleged against the petitioner. But prima facie I am of the opinion that the quantity seized is small quantity.

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.

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 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)

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 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, I think bail can be granted after imposing stringent conditions. But I make it clear the if the petitioner is involved in similar offence, the Investigating Officer is free to file appropriate application for cancellation of bail and if such an application is filed, the Jurisdictional Court is free to pass appropriate orders even though this order is passed by this Court.

Therefore, this Bail Application is allowed with the following directions:

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.

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.

Petitioner shall not leave India without permission of the jurisdictional Court.

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.

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.