Saharupkhan vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioners are the accused in Crime No.342/2018 of Thrikodithanam Police Station, Kottayam District, alleging offences punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the prosecution, the accused were found in possession of 1.4 Kilogram of Ganja on 21.02.2018 and thereby committed the offences alleged. Subsequently, petitioners were released on bail. However, they are alleged to have absconded and hence proceedings under Section 446 of Cr.P.C was initiated. Much later, petitioners appeared before the court, however, bail granted to them was cancelled and the petitioners were taken into custody.

Sri. P.Sreekumar, the learned counsel for the petitioners submitted that, petitioners had, due to Covid-19 restrictions went back to their native place in West Bengal and therefore, they had, immediately on return to Kerala, appeared before the court. It was also submitted that petitioners are willing to abide by any conditions that may be imposed upon them and that the continued detention of the petitioners would cause great prejudice. It was also pointed out that, petitioners had surrendered on 28.02.2023, and that they have been in custody since then. The learned counsel also asserted that, considering the young age of the petitioners and the alleged quantity of contraband found in their possession, further detention would cause great prejudice.

Smt. T.V.Neema, the learned Public Prosecutor, opposed the contentions and submitted that petitioners had absconded after they were released on bail and that, it was after great effort that the petitioners were apprehended. It was also submitted that, petitioners had earlier approached this Court in B.A.No.2228 of 2023 and that by order dated 22.03.2023, this application was dismissed and hence, the very same Bench will have to consider the bail application.

On a perusal of Annexure A2 order in B.A.No.2228 of 2023, it is noticed that, another learned Judge of this Court had, considered the bail application of the petitioners and rejected the same on 22.03.2023. Normally, the very same Bench ought to consider the bail application. However, it is informed from the Registry of this Court, that the said court is on leave for a period of four weeks. Since the Bench that passed the earlier order rejecting bail will not be available for a considerable period of time, the fundamental right of the accused to have their bail applications considered immediately and without further delay arises. Therefore, this Court is of the view that, notwithstanding Annexure A2 order in B.A.No.2228/2023, this Court is entitled and bound to consider the application.

Therefore, I proceed to consider the contentions of the learned counsel for the petitioners on merits.

Petitioners had, while obtaining bail in the initial instance, executed a bail bond undertaking to appear before the court without fail. The Covid-19 pandemic caused a situation which went out of control for the citizens of the country, the labourers working in Kerala and other parts of the country had to return back to their native places. This situation cannot be completely ignored.

Even though petitioners had not, thereafter, abided by their undertaking to appear before the court in the year 2021 or in 2022 and, it was only when proceedings under Sections 82 & 83 of the Cr.P.C. were initiated that they appeared before the court, I am of the view that, considering the period of detention already undergone by the petitioners from 28.01.2023, after cancellation of this bail, the interests of justice demand that the petitioners be released on bail subject to strict conditions. The fact that the petitioners have already been in custody for almost six months, compels this Court to release the petitioners on bail despite the denial of the said bail by Annexure A2 order.

In the above circumstances, this application is allowed on the following conditions:-

a) Petitioners shall be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

b) Petitioners shall co-operate with the trial of the case and also report before the Investigating Officer once in a month on every 4th saturday between 9.00 am and 11.00am.

c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall they attempt to tamper with the evidence.

d) Petitioners shall not commit any similar offences while they were on bail.

e) Petitioners shall not leave the State of Kerala without the permission of the Trial Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.