BAIL APPLICATIONS BY SHEBIN AND GEORGE KUTTY V. STATE OF KERALA (BAIL APPL. NOS. 2869 & 2888 OF 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** **BAIL APPL.NO. 2869 OF 2019** **CRIME NO. 78/2019 OF VAZHIKADAVU POLICE STATION , MALAPPURAM** ## **PETITIONER/1ST ACCUSED:** **SHEBIN, AGED 27 YEARS, S/O.MAIKKAL, OLIKKAL HOUSE, KARIMPUZHA, ELAMBILASSERI P.O., OTTAPPALAM, PALAKKAD DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN, SRI.JITHIN LUKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031. (CRIME NO.78/2019 OF VAZHIKKADAVU POLICE STATION, MALAPPURAM).** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2019, ALONG WITH BAIL APPL.NO.2888/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** **BAIL APPL.NO. 2888 OF 2019** **CRIME NO. 78/2019 OF VAZHIKADAVU POLICE STATION, MALAPPURAM** ## **PETITIONER/3RD ACCUSED:** **GEORGE KUTTY, AGED 35 YEARS, S/O. MICHEL, PATTIMAVIL HOUSE, POMBARA, OTTAPPALAM, PALAKKAD DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN, SRI.JITHIN LUKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (CRIME NO.78/2019 OF VAZHIKKADAVU POLICE STATION, MALAPPURAM)** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2019, ALONG WITH BAIL APPL.NO.2869/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------------B.A. Nos. 2869 & 2888 of 2019 ------------------------------------------Dated this the 28[th] day of May, 2019 ## O R D E R As the above bail applications pertain to accused Nos.1 and 3 in the same crime, these cases are disposed of on the basis of this common order. ## B.A. No. 2869 of 2019 2. The applicant herein is arrayed as accused No.1 in Crime No.78/2019 of Vazhikkadavu Police Station which has been registered under Sec.424 IPC, Sec.118(i) of the Kerala Police Act, 2011, Sec.6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COPTA) and Sec.77 of Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act” for short). 3. The brief of the allegation in this case is that, on 7.4.2019 at about 11.30 pm, A2 and A3 in furtherance of their B.A. Nos. 2869 & 2888 of 2019 ..4.. common intention to make profit, was found transporting Hans and Shambu, tobacco products sale of which is prohibited in Kerala, from Bangalore to Kerala in a lorry containing onion. 4. It is alleged by the Prosecution that the consignment was intended for sale to school children in the State of Kerala and make profit thereby. The lorry was seized at the interstate check post at Vazhikkadavu and the driver (A2) was arrested, and the cleaner of the lorry (A3) ran away from the spot, etc. The petitioner is the owner of the lorry and is arrayed as accused No.1. The petitioner would state that he had no knowledge of those nefarious activities. 5. The contentions urged by Sri.P.Samsudin, learned counsel appearing for the petitioner (A1) is that, indisputably all the offences alleged in this crime except the one under Sec.77 of the JJ Act are bailable offences, and that going by the admitted allegations in the instant FIR, the vital ingredients for the offence under Sec.77 of the JJ Act, which is a non bailable offence has not been made out. In that regard, it is pointed out that Sec.77 of the B.A. Nos. 2869 & 2888 of 2019 ..5.. JJ Act provides that, _“Whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to a fine which may extend up to one lakh rupees.”_ It is stated that in the present case, there is no allegation whatsoever, that the petitioner has given or caused to give any child intoxicating liquor or narcotic drug or tobacco products or psychotropic substance, etc, as understood in Sec.77 of the JJ Act. The only allegation is that the said tobacco products has been seized from the above lorry. Further that the Prosecution does not even have a remote case that the scene of occurrence in the instant case is anywhere even proximate to any school or educational institution. It is also pointed out by the petitioner that there is no case that any psychotropic substance has been found and seized in the instant case. Per contra, the learned Prosecutor would point out that the allegations disclosed in this case are serious, and that the seized quantity of tobacco and hans are huge. B.A. Nos. 2869 & 2888 of 2019 ..6.. 6. It is beyond any dispute that all the offences alleged in the instant crime except that under Sec.77 of the JJ Act are bailable offences. The only non bailable offence in the instant case is the one as per Sec.77 of the JJ Act. The Prosecution has no specific case in the instant crime that the petitioner has given or caused to be give to any child any intoxicating liquor or narcotic drug or tobacco products or psychotropic substance, etc, as understood in Sec.77 of the JJ Act. In the light of these aspects this Court is inclined to take the view that the custodial interrogation of the petitioner is not really be necessary and warranted in the facts and circumstances of the case. Accordingly the following orders and directions are passed. - _i. The petitioner will immediately personally appear before the Investigating Officer in relation to the above crime for interrogation purposes without any further delay at any rate by 10 am at any day or on before 12.6.2019._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the interrogation process._ - _iii. After the interrogation process is over, if the Investigating Officer arrests the petitioner in relation to the abovesaid crime, he shall be released on bail on his executing bond for Rs.50,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned._ ..7.. ## B.A. Nos. 2869 & 2888 of 2019 7. Further it is also ordered that it will be subject to following conditions:- - _i. The petitioner shall not involve in any criminal offences of similar nature._ - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall report before the investigating officer as and when required in that connection._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. ## B.A. No. 2888 of 2019 8. The petitioner herein is accused No.3 in Crime No.78/2019 of Vazhikkadavu Police Station, which has been registered for offences punishable under Sec.424 IPC, Sec.118(i) of the Kerala Police Act, 2011, Sec.6 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of B.A. Nos. 2869 & 2888 of 2019 ..8.. Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COPTA) and Sec.77 of Juvenile Justice (Care and Protection of Children) Act, 2015. 9. For the reasons already dealt with in B.A.No.2869/2019 pertaining to A1 in Crime No.78/2019, this Court is inclined to hold that the custodial interrogation of petitioner (A3) is not really called for in the facts and circumstances of the case. ## 10. Accordingly the following orders and directions are passed. - _iv. The petitioner will immediately personally appear before the Investigating Officer in relation to the above crime for interrogation purposes without any further delay at any rate by 10 am at any day or on before 12.6.2019._ - _v. The petitioner will fully co-operate with the Investigating Officer in the interrogation process._ - _vi. After the interrogation process is over, if the Investigating Officer arrests the petitioner in relation to the abovesaid crime, he shall be released on bail on his executing bond for Rs.50,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned._ B.A. Nos. 2869 & 2888 of 2019 ..9.. 11. Further it is also ordered that it will be subject to following conditions:- - _i. The petitioner shall not involve in any criminal offences of similar nature._ - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall report before the investigating officer as and when required in that connection._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG