Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944 CRIME NO.119 OF 2022 OF ENATHU POLICE STATION PETITIONER/ACCUSED: JAYAKUMAR AGED 45 YEARS MUKALUVIDA VADAKKETHIL HOUSE, NELLIMUKAL, PERINGANAD VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT, PATHANAMTHITTA, PIN - 691551 BY ADV RENJITH B.MARAR RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR OTHER PRESENT: SR.PP M.K PUSHPALATHA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J ............................................ B.A NO. 1255 OF 2022 …........................................ Dated this the 31st day of May, 2022
ORDER
This is an application for anticipatory bail under Section 438 of the Cr.P.C.
2. Petitioner is the accused in crime No.119/2022 of Enathu Police
Station, alleging commission of offences under Section 77 of the Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter referred to as the ‘JJ Act’) and Sections 6 and 24 of the Cigarettes and Other Tobacco Products Act, 2003.
3. The allegation against the petitioner is that when the Sub
Inspector of Police, Enathu Police Station conducted a search at the chicken stall run by the petitioner, he found ‘Chaap Tobacco’ substance (Hans) from few sacks in a car in front of the chicken stall. Alleging that tobacco is kept for sale to school children, the crime was registered.
4. The learned counsel for the petitioner submitted that petitioner is absolutely innocent in the case and that he has been falsely implicated. It was also submitted that the only non-bailable offence alleged against the petitioner is the offence under Section 77 of
the JJ Act. It was submitted that Section 77 of the JJ Act, is not attracted at all as the provision will apply, only if any intoxicating liquor, narcotic drugs or tobacco products or psychotropic substance has been supplied to any child. The learned counsel asserted that there is not even a whisper of an allegation that the petitioner had sold or attempted to sell tobacco to a school child. Petitioner is therefore entitled to the anticipatory bail, urged the learned counsel.
5. The learned Public Prosecutor opposed the grant of pre-arrest
bail. It was submitted that in the nature of the allegations raised against the petitioner, provisions of Section 77 of the JJ Act are attracted and that petitioner has criminal antecedents in the form of 15 other cases.
6. Having heard the learned counsel for the petitioner and the
learned Public Prosecutor, I am clearly of the view that prima facie there is merit in the contention of the learned counsel for the petitioner. The provisions of Section 77 of the JJ Act are not attracted; in the facts and circumstances of the case (Refer to the decision in Abhijith vs. State of Kerala [2022(1) KLT 718]. Section 77 of the JJ Act is the only non-bailable offence alleged against the petitioner. Hence, I am inclined to grant anticipatory bail to the petitioner subject to conditions.
7. In the result, this bail application is allowed. It is directed that
petitioner shall be released on bail, in the event of arrest in connection with Crime No.119/2022 of Enathu Police Station subject to the following conditions:-
(i) The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer;
(ii) The petitioner shall appear before the Investigating Officer in Crime No.119/2022 of Enathu Police Station as and when called upon to do so;
(iii) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the Investigating Officer in Crime No.119/2022 of Enathu Police Station may file an application before the jurisdictional Court, for cancellation of bail. I make it clear that I have not expressed any opinion on the
merits of the matter. Any observation contained in this order is only for the purpose of considering the entitlement of the petitioner for bail and shall not be treated as a finding by this Court on any point. Sd/- BECHU KURIAN THOMAS JUDGE AJM APPENDIX OF BAIL APPL. 1255/2022 PETITIONER’S ANNEXURES :
Annexure A1 TRUE COPY OF THE FIR IN CRIME NO. Annexure A2 TRUE COPY OF SEIZURE MAHAZAR IN CRIME NO. Annexure A3 TRUE COPY OF COMPLAINT PREFERRED BY THE
PETITIONER AGAINST CIRCLE INSPECTOR OF POLICE AND CIVIL POLICE OFFICER OF PATHANAMTHITTA POLICE STATION. //TRUE COPY// PA TO JUDGE