Muhammed Navas Mahamood v. The Station House Officer, Chokli Police Station & The State of Kerala; Muhammed Sidddeeque Panayullathil v. The Station House Officer, Chokli Police Station & The State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **Crl.MC.No.8975 OF 2019(B)** **CMP 8100/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY IN CRIME NO.683/2019 OF Chokli Police Station , Kannur** ## **PETITIONER/1ST ACCUSED:** **MUHAMMED NAVAS MAHAMOOD AGED 28 YEARS S/O.MAHAMOOD, KATTIL HOUSE, RESIDING AT NEELIMA HOUSE, PULIYANAMBRAM.P.O, KANNUR DISTRICT-670675** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT/COMPLAINANT/STATE:** - **1 THE STATION HOUSE OFFICER CHOKLI POLICE STATION, KANNUR DISTRICT-670672** - **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH Crl.MC.8979/2019(B), THE COURT ON 06.02.2020 PASSED THE FOLLOWING:** Crl.M.C.Nos.8975/2019 & 2 8979/2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **Crl.MC.No.8979 OF 2019(B)** **CMP 8102/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS,THALASSERY** **IN CRIME NO.683/2019 OF Chokli Police Station , Kannur** ## **PETITIONER/3RD ACCUSED:** **MUHAMMED SIDDEEQUE PANAYULLATHIL, AGED 30 YEARS S/O.ABDUL RAHIMAN, PANAYULLATHIL HOUSE, PULIYANAMBRAM.P.O., KANNUR DISTRICT-670675** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT/COMPLAINANT/STATE:** **1 THE STATION HOUSE OFFICER, CHOKLI POLICE STATION, KANNUR DISTRICT-670672** **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH Crl.MC.8975/2019(B), THE COURT ON 06.02.2020 PASSED THE FOLLOWING:** Crl.M.C.Nos.8975/2019 & 3 8979/2019 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.Nos.8975 of 2019 & 8979 of 2019 ----------------------------------------------Dated this the 6[th] day of February, 2020 ## **O R D E R** The petitioners are the first and the third accused in the case registered as Crime No.683/2019 of the Chokli police station. 2. The offences alleged against the petitioners are under Sections 22(a) and 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and Section 4(1) read with 7 of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Bill, 2019 (hereinafter referred to as 'the Bill'). 3. The prosecution case is that, on 27.11.2019, the petitioners and the second accused were found having in their Crl.M.C.Nos.8975/2019 & 4 8979/2019 possession 1.530 grams of ganja, 2.40 grams of charas, 40 milligrams of MDMA, two bottles of nicotine fluid and e- cigarettes while they were travelling in the car bearing Reg.No.KL 18/K- 3198. 4. As per Annexure-II order, the learned Magistrate granted bail to the petitioners on certain conditions. One of the conditions was that they shall surrender their passport in the court and if they have got no passport, they shall file an affidavit to that effect before the court. 5. The petitioners surrendered their passports before the court, pursuant to Annexure-II order. Subsequently, they made applications before the court below for releasing/returning the passports to them. As per Annexure-I order, the learned Magistrate dismissed the aforesaid applications. 6. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging Annexure-I order passed by the learned Magistrate. 7. Heard learned counsel for the petitioners and the learned Public Prosecutor. Crl.M.C.Nos.8975/2019 & 5 8979/2019 8. The offences alleged against the petitioners are under Sections 22(a) and 20(b)(ii)A of the Act and Section 4(1) read with Section 7 of the Bill. 9. The aforesaid Bill was introduced in the Lok Sabha only on 22.11.2019. Even before that, the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Ordinance, 2019 (hereinafter referred to as 'the Ordinance') was in force with effect from 18.09.2019. Therefore, the case against the petitioners should have been registered under Section 4(1) read with Section 7 of the Ordinance and not under the provisions of the Bill which was yet to be passed by the Parliament. However, the aforesaid issue is only academic because the aforesaid Bill was enacted as a law and the Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act was passed by the Parliament (Published in the Government of India gazette dated 05.12.2019). The provisions of the said Act have been given effect from the date 18.09.2019. Crl.M.C.Nos.8975/2019 & 6 8979/2019 10. In Annexure-II order passed by the learned Magistrate, it is stated as follows: _“The alleged offences are non-bailable but fall within the description of small quantities. The substances seized from them are also of small quantities.”_ 11. It eludes comprehension on what basis the learned Magistrate found that the offences under the Act, which are alleged against the petitioners, are non-bailable. 12. The Act does not contain any provision which states whether the offences under it are bailable or non-bailable. Of course, Section 37 of the Act suggests that the offences punishable under Sections 19, 24 and 27A and all offences involving commercial quantity under the Act are non-bailable. The question whether other offences under the Act are bailable or not is to be decided on the basis of the provisions contained in the Code. 13. As per Section 2(a) of the Code, unless the context otherwise requires, "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable Crl.M.C.Nos.8975/2019 & 7 8979/2019 by any other law for the time being in force; and "non-bailable offence" means any other offence. Part II of the First Schedule of the Code contains the classification of offences against laws other than the Indian Penal Code. There can be no doubt that, as per the last entry in Part II of the First Schedule of the Code, any offence punishable with imprisonment for less than three years or with fine only, shall be bailable. 14. The offence under Section 22(a) of the Act is punishable with rigorous imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both. The punishment prescribed for the offence under Section 20(b)(ii)A of the Act is also the same. It follows that as per the last entry in Part II of the First Schedule of the Code, the aforesaid offences are bailable. 15. In **Shaji v. State of Kerala : 2004 (3) KLT 270** , it has been held by a Division Bench of this Court that all offences under the Act which are punishable with imprisonment for a term not exceeding three years are bailable offences. Crl.M.C.Nos.8975/2019 & 8 8979/2019 16. In **Mathew @ Raju v. State of Kerala : 2008 (1) KHC 902 : 2008 (1) KLT 915** and **Robul Saikh v. State of Kerala : 2016 (1) KHC 734** , it has been held that an offence under Section 20(b)(ii)A of the Act is a bailable offence. 17. The offence under Section 4 read with Section 7 of the Ordinance is punishable with imprisonment for a term which may extend to one year or with fine which may extend to one lakh rupees, or with both (for the first offence). The Ordinance does not specify whether the offences under it are bailable or nonbailable. Therefore, going by the last entry in Part II of the First Schedule of the Code, the offence under Section 4 read with Section 7 of the Ordinance is also a bailable one. 18. Therefore, it can be seen that all the offences alleged against the petitioners are bailable. 19. The right to claim bail under Section 436(1) of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences, there is no question of discretion in granting bail. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right. So long as the accused is Crl.M.C.Nos.8975/2019 & 9 8979/2019 prepared to give bail, the Court is bound to grant bail to a person accused of a bailable offence (See **Rasiklal v. Kishore : AIR 2009 SC 1341** and **Talab Haji Hussain v. Madhukar Purshottam Mandkar : AIR 1958 SC 376** ). Bail can be refused to a person accused of a bailable offence only under the circumstances mentioned in Section 436(2) of the Code (See **Wilson v. State of Kerala : 2011 (2) KHC 129 : 2011 (2) KLT 596** ). 20. When the offences alleged against a person are bailable, it is illegal and improper to direct him to surrender his passport before the court as a condition for granting him bail. In **Azeez v. State of Kerala : 1984 KLT 437** , this Court has held as follows: _“The petitioner, being a person accused of only bailable offence, has a right to be enlarged on bail. There is no discretion with the court enabling it to grant or refuse bail. The court is required to grant bail in such a case, though the court is at liberty to modulate the terms as to bail. This certainly does not mean that the court can impose a condition which is not a term as to bail. The condition that a_ Crl.M.C.Nos.8975/2019 & 10 8979/2019 _person accused of bailable offence has to surrender his passport in court is not a term as to bail and therefore cannot be imposed by a magistrate under Section 436 of the Code. The condition imposed is illegal and has to be set aside”._ (emphasis supplied) 21. When it is found that, the condition of bail that the petitioners shall surrender their passports before the Court, is illegal, it automatically follows that the passports surrendered by them before the court below pursuant to such an order are liable to be returned/released to them. Therefore, Annexure-I order passed by the learned Magistrate is liable to be set aside. 22. Consequently, the petitions are allowed. Annexure-I order passed by the learned Magistrate is set aside. The passports of the petitioners, if surrendered by them in the court below in Crime No.683/2019 of the Chokli police station, shall be returned/released to them forthwith. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.Nos.8975/2019 & 11 8979/2019 ## **APPENDIX OF Crl.MC 8975/2019** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF THE ORDER IN CMP NO.8100/2019 ON THE FILE OF THE JUDICIAL IST CLASS MAGISTRATE COURT, THALASSERY DATED 9.12.2019** **ANNEXURE II TRUE COPY OF THE ORDER DATED 28.11.2019 IN CMP NO.7954 (A)/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY.** RESPONDENTS' EXHIBITS : NIL Crl.M.C.Nos.8975/2019 & 12 8979/2019 ## **APPENDIX OF Crl.MC 8979/2019** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE ORDER IN CMP 8102/2019 ON THE FILE OF THE JUDICIAL IST CLASS MAGISTRATE COURT, THALASSERY DATED 09.12.2019** RESPONDENTS' EXHIBITS: NIL True Copy PS to Judge