High Court of KeralaSingle Judge2024-05-31Bail allowed (application allowed). The petitio...

Dipu Sahani v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 4115 OF 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-05-31
Court Decision / Holding: The bail application is allowed; the petitioner Dipu Sahani is to be released on bail on a bond of Rs. 1,00,000 with two solvent sureties of like amount, subject to specified conditions.
Final Disposition: Bail allowed (application allowed). The petitioner to be released on bail with conditions.

Parties to the Case

Appellants / Petitioners

Dipu Sahani

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Sr. P.P. Smt. Neema T.V.

Legal Representation & Advocates

Counsels for Petitioners

• C.K. Sreejith

Counsels for Respondents

• Smt. Neema T.V.

Case Synopsis & Summary

The order dated 31 May 2024 in Bail App. No. 4115 of 2024 arising from Crime No. 288/2024 at Valapattanam Police Station, Kannur, concerns the second accused in a Narcotic Drugs and Psychotropic Substances Act case. Dipu Sahani seeks bail under Section 439 CrPC, contending that he is innocent and has been falsely implicated largely on the basis of a confession of the first accused. The prosecution asserts that seven kilograms of ganja were recovered from the first accused, who allegedly confessed the second accused’s involvement, leading to the arrest of the petitioner. The petitioner relies on the principle in Toofan Singh v. State of Tamil Nadu that a confession by a co-accused cannot by itself sustain an inference against another. He has been in judicial custody since 21 April 2024; the investigation is practically complete; the contraband quantity is intermediate; and he has no criminal antecedents. The State counters that the petitioner has no roots in Kerala and thus may flee, and that he might re-offend if released. The court, citing Hussainara Khatoon to reject root-based denial of bail and noting the investigation’s progress, grants bail with stringent conditions, balancing individual liberty with investigative needs, and invoking Sushila Aggarwal for permissible bail conditions.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985

Legal Doctrines & Maxims

Lack of roots in a State cannot be a sole ground to deny bail (Hussainara Khatoon v. Home Secretary, State of Bihar, 1981 SCC 181).
Confession of a co-accused cannot by itself sustain the accused’s involvement; corroboration is essential (Toofan Singh v. State of Tamil Nadu, 2020 (6) KHC 111).
Bail can be granted with conditions to preserve the investigation and trial; recoveries can be made even while on bail (Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and a false implication based on the co-accused’s confession. There is no independent, corroborative material linking him to the crime. He has been in judicial custody since 21 April 2024; the investigation is practically complete; the contraband quantity is intermediate; he has no prior criminal record. He submits that reliance on the first accused’s confession violates principles in Toofan Singh and that bail should be granted subject to reasonable conditions.

Contentions of Respondents

The State contends that the investigation is ongoing and that the petitioner, being an outsider with no roots in Kerala, poses a flight risk and potential for re-offending. Given the lack of established connections in the state and the seriousness of the offence, bail should be denied.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Toofan Singh v. State of Tamil Nadu	2020 (6) KHC 111	Positive	Used to contest reliance on confession of co-accused as sole basis for implicating the applicant.
Hussainara Khatoon v. Home Secretary, State of Bihar	1981 SCC 181	Positive	Cited to reject the argument that lack of roots in the state justifies denial of bail.
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited regarding the permissible scope of bail conditions and ongoing investigations even during bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 31[ST] DAY OF MAY 2024 / 10TH JYAISHTA, 1946** **BAIL APPL. NO. 4115 OF 2024** **CRIME NO.288/2024 OF Valappatanam Police Station, Kannur PETITIONER/S:** **DIPU SAHANI AGED 24 YEARS S/O.SHIV CHARANSAHANI MADARWAN, CHITTUPUR VARANASI DISTRICT, UTHARPRADES, PIN - 221005** **BY ADV C.K.SREEJITH** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PP.SMT.NEEMA T.V.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4115 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in Crime No.288/2024 of the Valapattanam (shown as Baliapattam in Annexure A1 FIR) Police Station, Kannur registered against the accused (two in number) for allegedly committing the offence punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’). The petitioner was arrested on 21.04.2024. 2. The essence of the prosecution case is that: on 20.04.2024, the Sub Inspector of Police had received an information that the 1[st] accused was found in possession of ganja. Accordingly, a search was conducted and 7 kilograms of ganja was seized from the possession of the 1[st] accused. During his interrogation he confessed that the 2[nd] accused was also involved in the crime. Accordingly, the 2[nd] accused was also arrested and BAIL APPL. NO. 4115 OF 2024 3 implicated as an accused in the crime. Thus, the accused have committed the above offence. 3. Heard; Sri.Sreejith C.K., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime solely on the basis of the confession statement made by the 1[st] accused which is hit by the decision of the Honourable Supreme Court in **Tofan Singh vs. State of Tamil Nadu** [2020 (6) KHC 111]. There is no material to link the petitioner's involvement in the crime. In any given case, the petitioner has been in judicial custody since 21.04.2024, the investigation in the case is practically complete and recovery has been effected. Moreover, the contraband involved in the case is of an intermediate quantity and the petitioner does not have BAIL APPL. NO. 4115 OF 2024 4 any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She also stated that since the petitioner has no roots in the State of Kerala, as he is hailing from the State of Uttar Pradesh. Therefore, there is every likelihood of him fleeing from justice. Furthermore, if the petitioner is released on bail, there is also a likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation is that the 1[st] accused was found in possession of 7 kilograms of ganja. During his interrogation he confessed that the 2[nd] accused was also involved in the case. Consequently, the 2[nd] accused was also arrested on the basis of the confession made by the 1[st] accused. The fact remains that the petitioner has been in judicial custody for the last 40 days, the BAIL APPL. NO. 4115 OF 2024 5 contraband involved in the case is of an intermediate quantity and the petitioner does not have any criminal antecedents. It is well settled in **Hussainara Khatoon v. Home Secretary, State of Bihar** [1981 SCC 181] that merely because a person does not have roots in a State, the same cannot be treated as a ground to deny bail to him. 7. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last nearly 40 days, the investigation in the case is practically complete, recovery has been effected, and further that the contraband involved in the case is of an intermediate quantity and the petitioner does not have any criminal antecedents, I am inclined to allow the bail application, but subject to stringent conditions. BAIL APPL. NO. 4115 OF 2024 6 In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Officer on - Investigating every Saturday between 9 a.m. and 11 a.m till the final report is filed. He shall also appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m. till the conclusion of the trial in Crime No.288/2024. - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; BAIL APPL. NO. 4115 OF 2024 7 - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall furnish his present and permanent address and mobile number to the Investigating Officer and also to the jurisdictional court. - (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Kannur without the previous permission of the jurisdictional court. - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Application for deletion/modification of the bail conditions shall be filed and entertained before the court below. BAIL APPL. NO. 4115 OF 2024 8 (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. SD/- **C.S.DIAS,JUDGE** rkc/31.05.24 BAIL APPL. NO. 4115 OF 2024 9 ## **APPENDIX OF BAIL APPL. 4115/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **THE TRUE COPY OF THE FIR IN CRIME NO.288/2024 ON THE FILE OF BALIAPATTAM POLICE STATION, KANNURDT. 21/4/2024**