Sanil Sabu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, ``` ``` 1945 ``` ## **`BAIL APPL. NO. 2088 OF 2023`** ``` CRIME NO.3/2023 OF ANGAMALY EXCISE RANGE OFFICE, ERNAKULAM ``` ## **`PETITIONER/2nd ACCUSED:`** ``` SANIL SABU AGED 23 YEARS S/O SABU, RESIDING AT ENJAKKADAN HOUSE, KIDANGOOR PO, PIN – 683572 THURAVOOR VILLAGE ,ALUVA TALUK., BY ADV V.N.SUBASH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ``` ``` BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 2088 OF 2023** **------------------------------------------------------Dated this the 28[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.3/2023 of the Excise Range Office, Angamaly registered against the accused for allegedly committing the offence punishable under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act), 1985. 3. The essence of the prosecution case is that: the first accused was found in possession of 1.17 kilo grams of ganja, which was meant for sale in his ``` 3 ``` ## **`BAIL APPL. NO.2088 OF 2023`** residence at Karukutty Grama Panchayat. The first accused allegedly confessed that, it was the second accused who had given him the contraband articles. Thus, the accused have committed the above offences. 4. Heard; Sri. V. N. Subash, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime, solely on the basis of the alleged confession of the first accused. The petitioner is hailing from a different panchayat. It is only because the petitioner is the first cousin of the first accused, he has been implicated in the crime. At any rate, the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, ``` 4 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He contended that there are incriminating materials to establish that it was the petitioner who supplied the contraband articles to the first accused. The petitioner’s custodial interrogation is necessary and recovery has 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 the Excise party found the first accused in possession of 1.17 kilo grams of ganja, which was stored in his house. During his interrogation, he revealed that the contraband articles were supplied to him by the second accused. Thus, the accused have allegedly committed the above offence. ``` 5 ``` ## **`BAIL APPL. NO.2088 OF 2023`** 8. The petitioner had filed Crl.M.C. No.206/2023 before the Court of Session, Ernakulam for a similar relief. By Annexure 1 order, the learned Sessions Judge dismissed the application, on finding that there were sufficient materials to substantiate that it was the petitioner, who supplied the contraband articles to the first accused. Moreover, it was also found that the custodial interrogation of the petitioner is necessary and recovery is to be effected. 9. In **Siddharam Satlingappa Mhetre v. State 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 ``` 6 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in Satishchandra Ratanlal 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 large magnitude ``` 7 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` 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 ``` 8 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` 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 selfimposed limitations. ## 10. In **Jai Prakash Singh v. State of Bihar and** **another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. ``` 9 ``` ``` BAIL APPL. NO.2088 OF 2023 ``` 11. On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, particularly on comprehending the seriousness, gravity and nature of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, the investigation of the case is in the preliminary stage and that the recovery is to be effected, I am convinced that the petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court ``` 10 ``` ## **`BAIL APPL. NO.2088 OF 2023`** on the date of surrender itself. Then, if the petitioner moves application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ## **`BAIL APPL. NO.2088 OF 2023`** ## **`APPENDIX OF BAIL APPL. 2088/2023`** ``` PETITIONER’S ANNEXURES Annexure 1CERTIFIED COPY OF THE ORDER IN CRL MC 206/2023 DATED 20.02.2023 OF HON'BLE SESSIONS COURT AT ERNAKULAM. Annexure 2TRUE COPY OF ORDER IN CRL MC 273/2023 DATED 10.02.2023 OF HON'BLE SESSIONS COURT AT ERNAKULAM. Annexure 3TRUE COPY OF THE CRIME AND OCCURRENCE REPORT NO.3/2023 OF EXCISE RANGE OFFICE ANGAMALY ``` ## **`RESPONDENT’S ANNEXURES : NIL`**