Bail is the rule and jail is the exception; courts must grant bail when justified, ensuring rights under Article 21 are upheld.

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

2. Petitioner is the 2^nd accused in Crime No.908/2024 of Walayar Police Station. The above case is registered against the petitioner and others alleging offences punishable under Section 22 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, NDPS Act). Petitioner was arrested on 09.11.2024 and she is in custody.

3. The prosecution case is that, on 09.11.2024 at about 14.00 hours, accused Nos.1 and 2 were found in possession of 48 grams of MDMA while they were travelling in a car bearing registration No.KL-08/AV-2799 at Walayar near the check post. On interrogation of accused Nos.1 and 2 and on perusal of their mobile phones, it is understood that accused Nos.3 and 4 are also involved in the same crime is the prosecution case.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that even though the allegation is that MDMA is seized from the petitioner, the same is not MDMA. This Court directed the Public Prosecutor to get analyst report. As per the analyst report, the contraband seized is not MDMA; but it is Methamphetamine. If that is the case, it is an intermediate quantity because commercial quantity as far as Methamphetamine is 50 gm. No criminal antecedents are alleged against the petitioner.

6. Considering the facts and circumstances of the case and also considering the fact that no criminal antecedents are alleged and the petitioner is in custody from 09.11.2024, I think bail can be granted to the petitioner. It is also submitted that the petitioner is now pregnant. But I make it clear that this order is applicable only to the petitioner and the bail application of other accused will be considered separately in accordance with law.

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 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 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.