Musthaakeem v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944** **CRL.MC NO. 208 OF 2023** **AGAINST THE ORDER IN CRL.M.P. 1634/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI** ## **PETITIONER:** MUSTHAKEEM AGED 26 YEARS S/O MUHAMMEDALI, SOUDABI MANZIL, MATTOOL NORTH, KANNUR, PIN - 670325 BY ADVS. ARJUN S. K.REEHA KHADER ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON 21.02.2023 PASSED THE FOLLOWING: Crl.M.C.208/2023 2 ## **ORDER** Dated this the 21[st] day of February, 2023 The petitioner is the 5[th] accused in Crime No. 188 of 2018 of the Crime Branch, Malappuram registered for offences punishable under Sections 370, 406, 420 read with 34 of Indian Penal Code and Sections 23(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act. The crime was originally registered at the Karipur Police Station and subsequently taken over by the Crime Branch. 2. The allegation is that the accused promised employment in Qatar to the defacto complainant's son and handed over visa and air ticket for onward journey to that country. Before boarding the flight, accused 1 and 2 handed over a parcel to the defacto complainant's son for handing over to the brother of another accused at the Qatar airport. The parcel contained Ganja and the boy was arrested at the airport for possession of banned substance. The defacto complainant's son is continuing in the Qatar jail from that day onwards. Crl.M.C.208/2023 3 3. The petitioner, who was not named as an accused in the FIR, was subsequently roped in on the allegation that he had transferred an amount of Rs.10,000/- to the defacto complainant's son. The petitioner was arrested on 30.07.2022 and was granted bail under Section 167(2) Cr.P.C. as per Annexure B order dated 29.09.2022. While granting bail, the the Special Court directed the petitioner to surrender his passport and to report before the investigating officer on every Saturday between 10 a.m. and 11 a.m. for interrogation, till the final report is filed. Although certain other conditions were imposed, petitioner is aggrieved by the above conditions only. He approached the Special Court for deleting the conditions unsuccessfully, as evidenced by Annexure D. Hence, this Crl.M.C seeking the following reliefs; 1. Issue an order setting aside Annexure D order of the Hon'ble Special Court for SC/ST (POA) Act & NDPS cases-Manjeri dtd. 22.11.2022 in Crl.M.P. No.1634/2022. 2. Thereafter, issue an order directing release of the passport of the petitioner, modify the bail condition directing the petitioner to appear before the investigating officer in Cr.No.188/18 of Crime Branch-Malappuram every Monday at 10 a.m. till the filing of the final report, and thereafter grant permission to the petitioner to go abroad to continue his employment. Crl.M.C.208/2023 4 4. Learned Counsel for the petitioner contended that withholding of passport amounts to impounding. The provision for impounding being under the Passport Act, which is a special enactment, neither the investigating officer nor the court can impound the passport of an accused. In support of the contention reliance is placed on the decision in **Suresh Nanda v. CBI** [(2008) 3 SCC 674). Relying on the decision in **Guddan @ Roop Narayan V. State of Rajasthan** (2023 LiveLaw (SC) 45) , it is contended that conditions for grant of bail cannot be so onerous that their existence itself would tantamount to refusal of bail. Reference is also made to the decision in **Maneka Gandhi v. Union of India and another** [(1978) 1 SCC 248) to contend that, illegal withholding of passport amounts to violation of the fundamental right to movement, guaranteed under Article 19(1)(d) of the Constitution of India. It is argued that due to withholding of his passport, the petitioner is about to lose his employment, which in turn will violate his right to livelihood. Further, no purpose is served by the petitioner's continued residence in Crl.M.C.208/2023 5 India and his reporting before the investigating officer every Saturday. 5. Learned Government Pleader strongly opposed the prayer for modification, contending that if the passport is released and the petitioner permitted to leave the country, there is every possibility of the petitioner absconding, as he has got connections abroad. It is submitted that the investigation could not be completed, because the defacto complainant's son, who is the most crucial witness, is in jail abroad and could not therefore be questioned. 6. The court's power to impose conditions while granting bail is not in dispute. The challenge against the conditions is on the premise that they are onerous. It is true that in **Suresh Nanda** (supra) the Apex Court held that the Passport Act is a special statute and impounding of passports can only be in accordance with the provisions of that enactment. It is pertinent to note that such finding was rendered since the passport of the petitioner therein was seized and retained by the CBI officials. An application moved by the petitioner before the CBI Court for release of the passport was allowed. Crl.M.C.208/2023 6 In revision filed by the CBI, the High Court reversed the order of the Special Court and refused to release the passport. Here, the circumstances are entirely different. The petitioner was directed to produce the passport in court for ensuring his continuance in the country till the investigation is complete. Such condition may cause certain difficulties to the petitioner. But that is no reason for this Court to delete the condition in a case of this nature. I am also not impressed with the contention that the direction to surrender the passport is equivalent to impounding. 7. Having held as above, I find some merit in the challenge against the condition requiring the petitioner to report before the investigating officer on every Saturday for interrogation till final report is filed. Such condition, according to me, is onerous and has the effect of curtailing the liberty granted by virtue of the bail order. Moreover, there is no reason for the accused to report before the investigating officer for interrogation every week till filing of final report. From the submission of the Public Prosecutor it appears that it may take some more time for the investigation to be Crl.M.C.208/2023 7 completed. Hence, I deem it appropriate to modify the second condition. In the result, the Crl.M.C. is allowed in part. Condition No. 2 in Annexure B order is modified as under; '2. The petitioner shall report before the investigating officer as and when required.' Sd/- **V.G.ARUN JUDGE** sb Crl.M.C.208/2023 8 ## **APPENDIX OF CRL.MC 208/2023** |PETITIONER ANNEXURES|| |---|---| |Annexure A|A TRUE COPY OF THE FIR IN CR.NO.33/2018 OF| ||KARIPUR POLICE STATION DTD 26.04.2018| |Annexure B|A TRUE COPY OF THE ORDER IN| ||CRL.MP.NO.1393/2022 OF THE HON'BLE SPECIAL| ||COURT FOR SC/ST (POA) ACT & NDPS CASES-| ||MANJERI DTD 29.07.2022| |Annexure C|A TRUE COPY OF THE APPLICATION IN| ||CRL.MP.NO.1634/2022 OF THE HON'BLE SPECIAL| ||COURT FOR SC/ST (POA) ACT & NDPS CASES-| ||MANJERI| |Annexure D|A CERTIFIED COPY OF THE ORDER IN| ||CRL.MP.NO.1634/2022 OF THE HON'BLE SPECIAL| ||COURT FOR SC/ST (POA) ACT & NDPS CASES-| ||MANJERI DTD 22.11.2022|