Princy Nijoy v. Union of India and Intelligence/Vigilance Officer, Narcotics Control Bureau, Kochi

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## `BAIL APPL. NO. 3123 OF 2022` ``` CRIME NO.2/2019 OF NARCOTICS CONTROL BUREAU, KOCHI, ERNAKULAM ``` ## `PETITIONER:` ``` PRINCY NIJOY, AGED 38 YEARS D/O BABU, THAIKKUTTATHIL HOUSE, PUSHPAKARA ROAD, VADUTHALA P.O ERNAKULAM- 682023 ``` ``` BY ADVS.K.I.SAGEER MUHAMMED YASIL ``` ## `RESPONDENTS:` - `1 UNION OF INDIA, REPRESENTED BY SECRETARY,DEPARTMENT OF REVENUE,MINISTRY OF FINANCE, NORTH BLOCK NEW DELHI-110001` - `2 INTELLIGENCE/VIGILANCE OFFICER , NARCOTICS INTELLIGENCE BRANCH, NARCOTICS CONTROL BUREAU, SUB ZONE-A1 SECOND FLOOR, KENDRIYA BHAVAN KAKKANAD, COCHIN-682037` ``` BY ADVS.MANU S., DSG OF INDIA RAJAGOPALAN NAIR K.R. ``` ## `OTHER PRESENT:` ``` SRI RAJAGOPALANNAIR K R SPCL PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3123/2022 -:2:- Dated this the 15[th] day of February,2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioner is the second accused in O.R No.2/2019 of the Narcotic Control Bureau, Kochi, registered against the accused, for allegedly committing the offence punishable under Sections 20(b)(ii) (b) and 8(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The gist of the prosecution case is that: on 18.9.2019 on the basis of the information given to the Narcotic Control Bureau, Kochi, a person named, Justin Clement who was attempting to board a flight to Sri Lanka from the Cochin International Airport to Colombo was intercepted and 1.370 Kgs of ganja was seized from his bag. In his interrogation, he confessed B.A.No.3123/2022 -:3:- that the contraband article was given to him by the petitioner. Thus, the accused has committed the above offences. 4. Heard; Sri.K.I. Sageer, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The marital relationship between the petitioner and her husband is estranged. It is to wreak vengeance on her, her husband has got her implicated in the crime. There is no material to link the petitioner with the above crime. The petitioner hails from a respectable family and she has no criminal antecedents. If she is arrested, it will tarnish the reputation of her family. The petitioner is prepared to abide by any stringent condition that may be imposed by this Court and B.A.No.3123/2022 -:4:- co-operate with the investigation. Hence, the application may be allowed. 6. The application was seriously opposed by the learned Public Prosecutor, who contended that there are sufficient incriminating materials to establish that the petitioner is involved in the crime. The petitioner had filed the application on 17.4.2022, which is nearly two years. It is reliably learnt that the petitioner is abroad. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that 1.370 Kgs of ganja was found in possession of the first accused. The first accused allegedly confessed that he received the contraband article from the petitioner. The petitioner asserts that she is not involved in the crime. On the B.A.No.3123/2022 -:5:- contrary, the prosecution asserts that they have incriminating materials to establish that the petitioner is involved in the crime. Even though the application was filed on 17.4.2022, the petitioner has not pressed for its consideration. The petitioner is said to be abroad for the last two years. 8. In **Anu Mathew vs. State of Kerala** [2023(3) KHC 151], a Division Bench of this Court has succinctly laid down the law that if an accused has absconded from India and gone abroad knowing fully well about the registration of a crime in respect of a non-bailable offence, though he may technically have a locus standi to maintain an application for pre-arrest bail, but, if the Court is convinced that the accused had absconded and fled away from the Law Enforcement Agencies, it would not be right and proper for the Court to exercise its jurisdiction under Section 438 of the Code. 9. In **Siddharam Satlingappa Mhetre v. State** B.A.No.3123/2022 -:6:- ## **of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in _Sibbia case_ [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: - (i)The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; - (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; - ( _iii_ ) The possibility of the applicant to flee from justice; - ( _iv_ ) The possibility of the accused's likelihood to repeat similar or other offences; - ( _v_ ) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; - ( _vi_ ) Impact of grant of anticipatory bail particularly in cases of B.A.No.3123/2022 -:7:- large magnitude affecting a very large number of people; - ( _vii_ ) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; - ( _viii_ ) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; - ( _ix_ ) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; - ( _x_ ) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126.** We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. ## 10. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in B.A.No.3123/2022 -:8:- exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, the law referred to the afore-cited decisions, and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioner, that the petitioner is abroad for the last more than two years, and further that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not inclined to exercise the discretionary powers of this Court under Sec.438 of the Code and grant an order of pre-arrest bail in favour of B.A.No.3123/2022 -:9:- ## the petitioner. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/sks/15.02.24 //True copy// P.A. To Judge