Abdul Hameedsavād v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 26TH DAY OF APRIL 2013/6TH VAISAKHA 1935** **Bail Appl..No. 2776 of 2013 (C)** **-----------------------------------------[CRIME NO. 1568/2012 OF NEDUMBASSERY POLICE STATION , ERNAKULAM DISTRICT]** **................** ## **PETITIONER/ACCUSED 2:** **-------------------------------------** **ABDUL HAMEEDSAVAD, AGED 48/2013, S/O. ABDUL HAMEED, UZHAVATH BISMI HOUSE. SOUTH ADUVASSERY P.O., THADIKKADAVU DESAM, KUNNUKARA VILLAGE, ERNAKULAM.** **BY ADV. SRI.T.B.SHAJIMON.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY DIRECTOR GENERAL OF PROSECUTION SRI. T.ASAF ALI.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19-04-2013, THE COURT ON 26/04/2013 PASSED THE FOLLOWING:** **Prv.** ## **P. D. RAJAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= B.A. No. 2776 of 2013 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26[th] day of April, 2013** ## **JUDGMENT** Petitioner is the 2[nd] accused in Crime No.1568/2012 of Nedumbassery Police Station, which is registered under sections 198, 403, 409, 465 and 120B IPC and section 12(1) (d) of the Passport Act and section 24 of the Emigration Act. 2. The prosecution case is that the 1[st] accused was working as a Police Constable of Nedumbassery Airport Police Station from 3-6-2003 to 15-12-2003 and from 13-122007 to 5-7-2013. At that time he committed criminal conspiracy with other senior police officials working in the Emigration Wing in the Nedumbassery Airport and engaged in human trafficking of several persons to different gulf countries without valid travel documents and violating Emigration Act. While engaging in that illegal act, the 1[st] accused gained Rs.59 lakhs, which was transferred into his father's account in the Federal Bank, Kottapady. The 2[nd] BA 2776/2013 2 accused helped him for getting Sim connection in the name of another person. The accused persons used a copy of the passport without the knowledge of the passport holder and facilitated human traffick of several persons through Nedumbassery Airport without emigration clearance and travel documents. On the basis of letter No.2502/Camp/12/ER dated 6-12-2012 issued by the District Superintendent of Police (Rural), Ernakulam, Nedumbassery Police registered the above crime. As per the order of the District Superintendent of Police (Rural), Dy. Superintendent of Police, Aluva took investigation in this case. During the investigation, on 14-1-2013 the 1[st] accused was arrested and produced before the court. On 15-4-2013 the 1[st] accused was enlarged on bail by the Judicial First Class MagistrateII, Aluva, after completing 90 days. The petitioner who is the 2[nd] accused appeared before the Dy. Superintendent of Police on 28-1-2013 at 5 p.m. The petitioner was arrested and remanded to judicial custody. His bail application was dismissed by the learned BA 2776/2013 3 Magistrate. Hence, he approached this court for bail. 3. Learned counsel appearing for the petitioner submits that the petitioner is innocent and the allegations levelled against him are false. Petitioner is the sole breadwinner of the family. The investigation is almost over and even then he is in custody without any valid reason. The petitioner is ready to co-operate with the trial. Hence, he prays for bail. 4. The learned Director General of Prosecution submits that the allegation of illegal human trafficking from Nedumbassery Airport has been created several national and international threat to India. As per the observations in B.A. Nos.1803/2013 and 1659/2013, the matter was considered in detail by the State Government and decided to entrust the matter to the C.B.I. As per G.O.(MS) No.113/2013/Home dated 23-4-2013, the Government entrusted the case with the CBI. It is also submitted that if petitioner is enlarged on bail at this stage, it will adversely affect further investigation of the case and the petitioner BA 2776/2013 4 will tamper with the prosecution evidence. 5. On the basis of the aforesaid rival arguments advanced by both sides, I have considered the nature and gravity of the allegation and perused the case diary. The allegation in this case is with regard to human trafficking of several persons through Nedumbassery Airport without proper travel documents and emigration clearance. Large number of persons were sent through this airport to various countries on different occasion. The offence was detected on the basis of information received to the District Superintendent of Police(Rural), Ernakulam. He gave a direction to the Nedumbassery Police to register and investigate the case. The most important function of the police is to locate the person who have committed the aforesaid crime by a proper investigation. The local police and the Crime Branch under the leadership of ADGP proceeded with the investigation and tried to collect the evidence available against the offenders. But they could not identify all those persons and bring them to the court of BA 2776/2013 5 law. The powers of arrest and search granted to the police for the purpose of investigation was not properly used by the police and Crime Branch. In this context, at the very early stage after 90 days the Judicial First Class magistrate, Aluva released the 1[st] accused on bail. When this bail application of the 2[nd] accused come up before this court, considering the seriousness of the matter, the government took an important decision to investigate the case with the help of CBI. 6. It is true that court must respond to the cry of the society and provided proper security to the nation and its citizen. The police have well demarcated sphere of activity in the field of detection of crime. The investigation of an offence is exclusively reserved for the executive through the Police Department and control over which vest with the State Government. The executive is commanded with duty to keep vigilance of law and its bounden duty to investigate offences and bring the offenders to the proper forum for trial. Once the investigating agency finds offence having BA 2776/2013 6 committed, it is the responsibility to collect evidence in proving the offence. 7. On perusal of the case diary, it is seen that the police has located several police officers involved in this crime at the initial stage of their investigation, but no action was taken against them even after the interference of ADGP. The Executive head of the State considered the seriousness of the allegation and entrusted the matter to the CBI. In some case the locationof criminals by the police is very easy as when a crime is committed in their very presence.They know that man and took him immediately. In some cases the accused is unknown or uncertain. In such situation, earnest effort is necessary to locate the accused. When police enter upon investigation, they have to gather evidence, sort it out and put the case before the court of law, according to the provisions of law. The investigator must to take initiative and should be always vigilant. He should be having keen observation of facts and possess good discipline and temper. Moreover, he possesses good BA 2776/2013 7 judgment about the facts before him. Entrusting the matter to the CBI will give more confidence to the public for a detailed enquiry all over India and abroad. 8. Issue of grant of bail in non-bailable offences, particularly before commencement of trial, was considered by the Apex Court in the State (through Deputy Commnr. of Police, Special Branch, Delhi) V. Jaspal Singh Gill, AIR 1984 SC 1504, and held as follows:- 9. The offence punishable under Sec. 3 of the Official Secrets Act, 1923 with which the respondent is charged relates to military affairs and it is punishable with imprisonment which may extend to fourteen years. This Court in The State v. Jagjit Singh, AIR 1962 SC 253 has indicated that the Court should exercise a greater degree of care in enlarging on bail an accused who is charged with the offence punishable under Section 3 of the Official Secrets Act when it relates to military affairs. I have also gone through the decision of this Court in Gurcharan Singh v. State (Delhi Administration), (1978) 2 SCR 358 : (AIR 1978 SC 179) and Gudikanti BA 2776/2013 8 Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1978) 2 SCR 371 : (AIR 1978 SC 429) which deal with the principles governing the grant of bail. It may be mentioned here that in the last of the above cases, the accused had been acquitted by the trial Court but convicted by the High Court on appeal. On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving nonbailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.” 9. The allegation levelled against the petitioner is of very grave and serious nature, which relates to interests and security of the State. Considering the nature and gravity of the offence and the status of the petitioner, I am BA 2776/2013 9 of the opinion that this is not a fit case to grant bail at this stage. Since the investigation is entrusted to the CBI, I am bound to protect the interest of the public and the larger interest of the State. There is no merit in the application and it is dismissed accordingly. **P. D. RAJAN, JUDGE.** nkm.