HIRATH AGED 20 YEARS S/O SHAJI v. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, AND SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** ## **Bail Appl..No.3073 OF 2020** **AGAINST THE ORDER IN Bail Appl. 6404/2019 OF HIGH COURT OF KERALA CRIME NO.153/2019 OF Valappad Police Station , Thrissur** ## **PETITIONER:** **HIRATH AGED 20 YEARS S/O.SHAJI, KANJIRATHIL HOUSE, MUTTICHUR DESOM, PADIYAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.N.L.BITTO** ## **RESPONDENTS:** **1 THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, PIN-682 031. 2 SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION, THRISSUR DISTRICT-680 567** ## **BY P.P.SRI.JAYASURYA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B.A. No. 3073 of 2020 2** **P.V.KUNHIKRISHNAN, J. -------------------------B.A.No. 3073 of 2020 ------------------------------Dated this the 03[rd] day of July, 2020** ## **ORDER** **The above Bail Application is filed by the first accused in Crime No.153 of 2019 of the Valappad Police Station which is now pending as S.C. No.393 of 2019 before the Additional Sessions Court, Thrissur.** **2. The above crime is registered against the petitioner and another alleging offence punishable under Section 20(b)(ii) B of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The allegations against the petitioner and the other accused is that they were found in possession of 2.085 Kg of Ganja in a motor cycle on 23.3.2019. The petitioner was arrested on 23.03.2019. The second accused in this case was released on bail by the Sessions Court, Thrissur as per the order** ## **B.A. No. 3073 of 2020 3** **dated 30.05.2019 in Crl.M.C. No.897 of 2019. The Sessions Court granted bail to the second accused in the light of the fact that the charge sheet is not filed within the stipulated time. It was a statutory bail.** **3. The petitioner filed a Bail Application before this Court earlier as B.A.No.6404 of 2019. This Court dismissed the above Bail Application mainly for the reason that the petitioner is involved in five other crimes of grave nature. While dismissing the above application, this Court also directed the trial court to conclude the trial of the case within a period of eight months. Annexure 1 is the said order. The relevant portion of the order in B.A. No.6404 of 2019 is extracted hereunder:** _**“In the result, this application stands dismissed.**_ _**However, the court below is directed to dispose of S.C. No.393 of 2019, in accordance with law, as expeditiously as possible and at any rate,**_ ## **B.A. No. 3073 of 2020 4** _**within a period of eight months from the date of receipt/production of a copy of this order.”**_ **4. Thereafter, the petitioner again filed a Bail Application as B.A.TMP No.245 of 2020. When that Bail Application came up for consideration, this Court considered the fact that the Bail Application filed by the petitioner earlier is dismissed and the second Bail Application is filed even before completing eight months prescribed by this Court in Annexure 1 order.** **5. Thereafter, the present Bail Application is filed by the petitioner mainly contending that, the trial is not completed even now. He also submitted that the trial is going on in Thrissur District where the Covid-19 Lock-down is strict. There is no chance to conclude the trial in near the future is the contention of the petitioner.** **6. Since his Bail Application is dismissed twice and this Court directed the lower court to** ## **B.A. No. 3073 of 2020 5** **dispose of Sessions Case itself within eight months as per Annexure 1 order, this Court called for a report from the learned Sessions Judge. The learned Sessions Judge reported that now due to Covid-19, the likelyhood of the appearance of the witnesses or accused is remote. Therefore, the trial court requested to exclude the period of restrictions consequent to Covid-19 from the period of eight months fixed by this Court. The report dated 02.06.2020 of the I Additional Sessions Judge, Thrissur is as follows:** _**“The Hon'ble High Court was pleased to call for me to report as to the progress of the trial of SC No.393 of 2019 and whether the time limit has been complied with.**_ _**In this regard, it is respectfully submitted thus: The order of the Hon'ble High Court fixing time limit was received by me on 22.02.2020. Considering the fact that the accused is in custody, I have already framed charge in the case on 28.10.2019 and trial was commenced on 16.12.2019 scheduling the case from 25.01.2020 to 28.01.2020. The order was received by me on**_ ## **B.A. No. 3073 of 2020 6** _**29.05.2020. Since the witnesses were not available, the case stood adjourned from day to day as below:**_ _**“25.01.2020 27.01.2020 14.02.2020 25.02.2020 03.03.2020 17.03.2020 07.04.2020 28.04.2020” and now the case stands posted to 09.06.2020. The adjournment was necessitated due to the absence of the witnesses and to issue process from the court. The report of the police would suggest that the witnesses could not be found out. Now due to the Covid-19, the likelyhood of the appearance of the witnesses or accused is remote.**_ _**In the above circumstances, the Hon'ble High Court may be pleased to exclude the period of restrictions consequent to Covid-19 from the period of 8 months fixed by the Hon'ble High Court.”**_ **7. Heard the learned Counsel for the petitioner and the learned Public Prosecutor.** **8. Admittedly, the petitioner is in custody from 23.3.2019 onwards. Now, he is in custody for more than one year. The second accused in this case has already been released on bail. The learned Public Prosecutor submitted the details of** ## **B.A. No. 3073 of 2020 7** **the other cases pending against the petitioner. It is true that five other cases were registered against the petitioner. Among the five cases, two cases were already disposed of. The cases now pending are for the offences under the Indian Penal Code.** **9. It is a fact that the country is facing Covid-19 epidemic. Even the movements of citizens are restricted. Even in the Jail, there are restrictions. In light of the report submitted by the trial Judge that the court below is not in a position to dispose of the matter as directed by this Court because of the Covid-19 lock-down, the petitioner cannot be put behind the bar indefinitely without trial.** **10. Moreover, considering the need to follow** **social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in** **B.A. No. 3073 of 2020 8** **Re:Contagion of COVID-19 Virus In Prisons case(Suo Motu Writ Petition(C)No.1 of 2020) and a Full Bench of this Court in W.P(C) No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.** **11. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram.P v Directorate of Enforcement (2019** **(16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.** **12. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:** ## **B.A. No. 3073 of 2020 9** **1.The petitioner shall be released on bail on 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 trial court.** **2. The petitioner immediately after release from the prison, report before the Station House Officer of Valappad Police Station and shall furnish his phone number and the place where he is going to reside. The Station House Officer concerned shall keep a vigil on the whereabouts of the petitioner and shall ensure that the petitioner do not violate the terms of the bail.** **3. The petitioner shall not threaten or** **attempt to influence the witnesses or tamper with the evidence.** ## **4. The petitioner shall surrender his** ## **B.A. No. 3073 of 2020 10** **passport before the trial court. If there is no passport, he will file an affidavit before the trial court to that effect within one week from the date of his release.** **5. The petitioner shall report before the Valappad Police Station on every Mondays and Fridays at 10 a.m. The Station House Officer, Valappad will maintain a diary showing the attendance of the petitioner on all Mondays and Fridays. The presence of the petitioner on all Mondays and Fridays should be noted in it and countersigned by the Station House Officer. The above diary should be produced by the Station House Officer as and when required by the trial court.** **6. The petitioner shall not involve in** **any similar offences.** ## **B.A. No. 3073 of 2020 11** **7. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of declared lockdown.** **If any of the above conditions are violated by the petitioner, the trial Court can cancel the bail in accordance to law, even though the bail is granted by this Court.** **P.V.KUNHIKRISHNAN JUDGE** ## _**pkk**_