M.M. Saleem v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 9288 OF 2023 ``` ``` CRIME NO.511/2022 OF Cheruthuruthy Police Station, Thrissur ``` ## **`PETITIONER(S)/APPLICANT:`** ``` M.M.SALEEM, AGED 58 YEARS ``` ``` S/O MOHAMMED, MANATTIL VEEDU, CHALISSERY VILLAGE, MUKKUTTA DESOM, THRISSUR, PIN - 680585 ``` ``` BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM P.VIJAYA BHANU (SR.) ``` ## **`RESPONDENT(S)/COMPLAINANT/STATE:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER, CHERUTHURUTHY POLICE STATION, THRISSUR DISTRICT, PIN - 679121`** - **`3 THE STATE TAX OFFICER, GST DEPARTMENT, THRISSUR (SUO MOTU IMPLEADED AS ADDL.R3 AS PER ORDER DTD 5/12/23)`** - **`BY ADV.`** - **`SRI.B.S. SYAMANTAK, PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.9288 OF 2023 ``` 2 ## **P.V.KUNHIKRISHNAN, J. -----------------------------Bail Appl. No.9288 of 2023** **---------------------------------------------Dated this the 02[nd ] day of February, 2024** ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code (Cr.P.C.) 2. The petitioner is one of the accused in Crime No.511/2023 of Cheruthuruthy Police Station. The above case is registered against the petitioner and others, alleging offences punishable under Section 406 of IPC. The above case is registered against the petitioner and others based on a complaint preferred by the State Tax Officer (Investigation Branch) and State Goods and Services Tax Department, Thrissur. The prosecution case is that the defacto complainant 3 ``` BAIL APPL. NO.9288 OF 2023 ``` had seized 18,590 kgs of arecanut worth Rs.65,06,950/- from the 1[st] accused warehouse located at Varavoor on which sufficient tax was not remitted. Subsequently, on 11.10.2020, when the defacto complainant visited the said warehouse to confiscate the seized goods, it was found that the 1[st] accused had moved the goods from the warehouse without the knowledge of the defacto complainant and thus committed criminal breach of trust. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that there is no serious allegation against the petitioner and the main allegation is against the 1[st] accused. The counsel submitted that the petitioner is implicated based on a confession statement given by the 1[st] accused. There is averments in the bail application that there is some 4 ``` BAIL APPL. NO.9288 OF 2023 ``` enmity from the side of the 1[st] accused towards the petitioner and that is why the petitioner is falsely implicated in this case. 5. The counsel for the petitioner submitted that the petitioner is ready to comply any conditions, if this Court grant him bail. The learned Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the bail application submitted by the 1[st] accused is dismissed by this Court as per order dated 24.07.2023 in Bail Appl. No.8945/2022. It is submitted that the properties to be recovered and therefore the custodial interrogation of the petitioner is necessary. 6. When this bail application came up for consideration on 22.01.2024, this Court directed the petitioner to appear before the investigating officer on 29.01.2024 and 30.01.2024 for interrogation. As directed by this Court, the petitioner appeared before the investigating officer for interrogation. The Public 5 ``` BAIL APPL. NO.9288 OF 2023 ``` Prosecutor submitted that the statement of the petitioner is recorded. The Public Prosecutor submitted that even after interrogating the petitioner, the arecanut seized and kept in the godown could not be seized. It is also submitted that there is a chance for influencing the witnesses, if the petitioner is released on bail. 7. This Court considered the contention of the petitioner and the learned Public Prosecutor. From the facts, it is clear that the petitioner who is the second accused is implicated based on the statement of the 1[st] accused. No material evidence is produced to show the involvement of the petitioner in this case at this stage. Of course, this is a matter to be investigated by the investigating officer and the investigating officer is free to investigate the matter in accordance with law to collect the evidence against the petitioner. Since the petitioner appeared before the 6 ``` BAIL APPL. NO.9288 OF 2023 ``` investigating officer as ordered and his statement is also recorded , I think, bail can be granted on imposing stringent conditions and also directing the petitioner to appear before the investigating officer once in a week. Therefore, the bail application can be allowed on stringent conditions. 8. 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 in as much 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. 7 ``` BAIL APPL. NO.9288 OF 2023 ``` 9. 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: 1. Petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation; 2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned; 3. Petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly 8 ``` BAIL APPL. NO.9288 OF 2023 ``` make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer; 4. Petitioner shall not leave India without permission of the jurisdictional Court; 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; 6. The petitioner shall not leave Kerala without permission from the Jurisdictional Court. 7. The petitioner shall appear befor the investigating officer on all Monday’s at 10. A.M., till final report is filed. 8. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel ``` BAIL APPL. NO.9288 OF 2023 ``` **==> picture [7 x 10] intentionally omitted <==** the bail in accordance to law, even though the bail is granted by this Court. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` BAIL APPL. NO.9288 OF 2023 ``` 10 ## **`APPENDIX OF BAIL APPL. 9288/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ATRUE COPY OF THE F.I.R IN CRIME NO:511/2022 OF CHERUTHURUTHY POLICE STATION ANNEXURE BTRUE COPY OF THE JUDGMENT DATED 16/8/2023 IN W.P (C) NO;10817/2022 OF THIS HON'BLE COURT ``` RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE