Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 9TH DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943 CRL.MC NO. 40 OF 2022 AGAINST THE ORDER DATED 23.12.2021 IN CRL.M.P.NO.2010/2021 OF II ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM PETITIONER/RESPONDENT/ACCUSED NO.1: ANSAL, AGED 34 YEARS, S/O.SHAMSUDHEEN, MATTATHIL HOUSE, IDIVETTY KARA, KARIKKODU, THODUPUZHA NOW RESIDES AT A RENTAL HOUSE OF NAJMA, MARIYIL HOUSE, IDIVETTY KARA, KARIKKODU VILLAGE, THODUPUZHA BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SMT.MITHA SUDHINDRAN SMT.SRUTHY N. BHAT SRI.AJEESH K.SASI SRI.RAHUL SUNIL RESPONDENT/PETITIONER/STATE: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 BY SRI. ARAVIND V MATHEW, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
Dated this the 09th day of February, 2022 This petition is filed by the 1 st accused in Crime No.1393/2020 of Angamaly Police Station seeking to set aside an
order passed by Additional District and Sessions Court-II,
Ernakulam (for short ‘the court below’) in Crl.M.P.No.2010/2021, cancelling the bail already granted to him in the above crime.
2. It was contended in Crl.M.P.No.2010/2021 filed by the
prosecution before the court below that the petitioner who was granted bail by order dated 12.01.2021 in Crl.M.C.No.01/2021 has violated condition No.4 imposed not to involve in any other crime
of similar nature while on bail. It was contended by the prosecution before the court below that the petitioner herein had violated the said condition by committing another offence of like nature and causing Crime No.1521/2021 to be registered against him at Thodupuzha Police Station. The petitioner was remanded to custody on 01.10.2021 in Crime No.1521/2021 and he was in
judicial custody as RP No.8571. In the above circumstances Crl.M.P.No.2010/2021 was filed by the prosecution seeking for cancellation of bail already granted to him in Crime No.1393/2020 of Angamaly Police Station.
3. Notice was served on the petitioner herein in the above application. Counter statement was filed contending that
arraignment of the petitioner as an accused in Crime No.1521/2021 of Thodupuzha Police Station was solely based on confession statement of the 1st accused in that crime. According to him not even a whisper was made about the involvement of the petitioner in the remand report. Contrabands were not alleged as seized from his possession. According to him only for cancellation of the bail granted to him in Crime No.1393/2020 of Angamaly Police Station that he was implicated as an accused in Crime
No.1521/2021 of Thodupuzha Police Station. The further contention was that he had met with an accident on 21.09.2021 and had undergone treatment in Holy Family Hospital, Muthalakodam, Thodupuzha. Bail was granted by the Special Judge for NDPS Act Cases, Thodupuzha in Crime No.1521/2021. It was observed by the court below that Sub-Section (2) of Section 439 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) empowers a Court of Session to pass an order to cancel the bail, when any of the conditions imposed while granting bail was violated. The court has also observed that the accused failed to
comply with condition No.4 of the bail order intentionally and held
in that context that bail granted is liable to be cancelled and accordingly did so.
4. This Court has directed the learned Public Prosecutor to produce the Case Diary in Crime No.1521/2021 of Thodupuzha Police Station which is the crime registered against the petitioner
secondly, alleging commission of offences punishable under Sections 20(b)(ii) B and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). It is noticed that the confession statement alone is the only incriminating material to base registration of Crime No.1521/2021. The learned Public Prosecutor also did not point out any material apart from the confession statement to base implication of the petitioner in Crime
No.1521/2021 of Thodupuzha Police Station. Therefore, reliable and admissible evidence is totally lacking in the case. When cancellation of bail already granted is applied for, the court has to apply its mind to the incriminating circumstances that led to the incorporation of name of the petitioner in the array of the accused. In the case on hand it is found that the court below has not applied its mind to the materials available, based on of which Crime No.1521/2021 of Thodupuzha Police Station was registered against the petitioner. In the above circumstances, this Court is inclined to allow the application.
In the result, the Crl.M.C stands allowed. Annexure-A3 order
passed by the court below cancelling bail of the petitioner in Crime
No.1393/2020 of Angamaly Police Station is set aside. The order
granting bail to the petitioner in Crl.M.C.No.01/2021 in Crime No.1393/2020 of Angamaly Police Station dated 12.01.2021 is restored. The petitioner is directed to obey the conditions imposed in the order granting bail strictly. The observation made in the order are only for the purpose of this case and not to be followed by the court while holding trial of the case. Sd/- MARY JOSEPH JUDGE NAB
APPENDIX OF CRL.M.C.NO.40/2022 PETITIONER’S ANNEXURES: ANNEXURE-A1 PHOTOCOPY OF THE APPLICATION FILED BY RESPONDENT DATED 06.11.2021 ANNEXURE-A2 PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 16.11.2021 ALONG WITH ITS ANNEXURES ANNEXURE-A3 COPY OF ORDER IN CRL.M.P.2010/2021 DATED 23.12.2021 OF II ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM RESPONDENT’S ANNEXURES : NIL
//TRUE COPY// P A TO JUDGE