AALAMIN and JOSNA AKTHAR v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1549 OF 2024`** ``` CRIME NO.2845/2023 OF ERNAKULAM SOUTH POLICE STATION, ``` ## **`ERNAKULAM`** ``` AGAINST THE ORDER/JUDGMENT DATED 31.01.2024 IN CRMC NO.255 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## **`PETITIONERS/ACCUSED NOS.1 AND 2:`** ``` 1AALAMIN AGED 23 YEARS C/O.ZAHID, NO.15, SHIKARIPALYA, HULIMANGALA POST, JIGANI, BANGALURU, KARNATAKA, PIN - 560105 2JOSNA AKTHAR AGED 24 YEARS C/O. ALAMIN, NO.2, 2ND CROSS, SHIKARIPALYA, JIGANI, BANGALURU, KARNATAKA, PIN - 560105 BY ADVS. P.V.ANILKUMAR D.SARITHA KEERTHI PRIYA A. JOHN MANJOORAN MANU MURALI T. MINO ABRAHAM ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI. C. S. HRITHWIK - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1549 OF 2024 ------------------------------------------------------Dated this the 1[st] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 1 and 2 in Crime No.2845/2023 of the Ernakulam Town South Police Station, Ernakulam registered against the accused (two in number) for allegedly committing the offences punishable under Section 447 of the Indian Penal Code and Section 14A and 14B of the Foreigners Act, 1946. The petitioners were arrested on 09.12.2023 and 11.12.2023, respectively. 2. The crux of the prosecution case is that: the accused, who were Bangladeshi nationals, had infiltrated into the territory of India, without any valid ``` 3 ``` ## **`BAIL APPL. NO.1549 OF 2024`** passport or visa and, thereafter, they trespassed into the high security and sensitive zone of the Cochin Shipyard on 09.12.2023 at around 9.45 p.m., on the pretext of collecting waste materials. Thus, the accused have committed the above offences. 3. Heard; Sri. Anil Kumar P. V., the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been arrested on 09.12.2023. The investigation of the case is practically complete. The second petitioner is a lady and she is 7 months pregnant. The petitioners hail from the state of Karnataka. The petitioners have no criminal antecedents. The has been recovery effected. Therefore, the petitioners’ further detention ``` 4 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` is not necessary. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He contended that the petitioners had committed the heinous offences by infiltrating into the territory of India without any valid documents and, thereafter, have trespassed into the high security and sensitive zone of the Cochin Shipyard. The investigation is still in progress. All angles are being looked into by the Investigating Officer. Moreover, as the petitioners have no roots in India, if they are released on bail, they would certainly flee from justice. Then, their further presence cannot be secured. Hence, the application may be dismissed. 6. The materials on record substantiate that the petitioners are not Indian nationals. Not only they infiltrated into the territory of India, they have also ``` 5 ``` ## **`BAIL APPL. NO.1549 OF 2024`** trespassed into the high security and sensitive zone of a defence location namely, the Cochin Shipyard Limited. The intention of the petitioners is not discernible at this moment. This is the angle, that has been looked into by the Investigating Officer. Moreover, the petitioners have no roots in India. Going by the law laid down in **Hussainara Kahtoon v. Home Secretary, State of Bihar** , [1980 (1) SCC 98], it necessary for this Court has looked into the roots of an accused before releasing an accused on bail. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: - i. whether there is any prima facie or ``` 6 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` reasonable ground to believe that the accused had committed the offence; ii. nature and gravity of the accusation: iii. severity of the punishment in the event of conviction; iv. danger of the accused absconding or fleeing, if released on bail; - v. character, behaviour, means, position and standing of the accused; vi. likelihood of the offence being repeated; vii. reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” 8. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the ``` 7 ``` ## **`BAIL APPL. NO.1549 OF 2024`** evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not ``` 8 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 10. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on ``` 9 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 11. After bestowing my anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially on comprehending the nature, gravity and the seriousness of the offences of infiltrating into the country and thereafter attempting to enter into the high security and sensitive zone of the defence location, I am of the definite view that the petitioners cannot be released on bail, notwithstanding the fact that the they are in judicial custody since, 09.12.2023. ``` 10 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` In the result, the application is dismissed. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ``` BAIL APPL. NO.1549 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 1549/2024`** |**`PETITIONER’S ANNEXURES`**|**`PETITIONER’S ANNEXURES`**| |---|---| |**`Annexure - A1`**|**`TRUE COPY OF THE AADHAR CARD`**| ||**`NO.342243454910 OF THE 1ST PETITIONER`**| |**`Annexure- A2`**|**`TRUE COPY OF THE AADHAR CARD`**| ||**`NO.726891630975 OF THE 2ND PETITIONER`**| |**`Annexure - A3`**|**`TRUE COPY OF THE AADHAR CARD`**| ||**`NO.414162405700 OF THE MOTHER OF THE 1ST`**| ||**`PETITIONER /ACCUSED NO.1.`**| |**`Annexure - A4`**|**`TRUE COPY OF THE AADHAR CARD`**| ||**`NO.503668609125 OF THE SISTER OF THE 2ND`**| ||**`PETITIONER`**| |**`Annexure -A5`**|**`TRUE COPY OF THE ORDER DATED 18/01/2024`**| ||**`IN`**<br>**`CMP`**<br>**`NO.202/2024`**<br>**`IN`**<br>**`CRIME`**| ||**`NO.2845/2023, PASSED BY THE ADDL. CHIEF`**| ||**`JUDICIAL MAGISTRATE COURT (ECONOMIC`**| ||**`OFFENCES), ERNAKULAM.`**| |**`Annexure -A6`**|**`THE ORIGINAL OF THE ORDER DATED`**| ||**`31/01/2024 IN CRL.M.C. NO.255/2024`**| ||**`PASSED BY THE HON'BLE DISTRICT AND`**| ||**`SESSIONS COURT, ERNAKULAM.`**| |**`RESPONDENT’S ANNEXURES: NIL`**||