SANKARANANTH v. STATE OF KERALA

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 1427 OF 2024` ``` CRIME NO.1259/2023 OF Poojappura Police Station, ``` ``` Thiruvananthapuram ``` ## `PETITIONER/3rd ACCUSED:` ``` SANKARANANTH, AGED 24 YEARS S/O P. BABY, SANTHA NIVAL KARIYIL KAZHAKOOTAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695022 BY ADV S.NIKHIL SANKAR ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.1427/2024 ## **-: 2 :-** ## **C. S. DIAS, J.** = = = = = = = = = = = = = = = = = = = = **B. A. No.1427 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of March, 2024 ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 [‘Code’, for short], for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.1259/2023 of the Poojappura Police Station, Thiruvananthapuram, registered against the accused (3 in number), for allegedly committing the offences punishable under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The crux of the prosecution case is that, on 24.08.2023 at around 21.10 hrs, the 1[st] accused was found in possession of 13.460 grams of MDMA along with Rs.8150/-, which was obtained by him from the sale B.A No.1427/2024 **-: 3 :-** proceeds of the contraband articles. During the course of interrogation, the 1[st] accused stated that the 3[rd] accused went along with him to purchase the contraband articles. Thus, the accused have committed the above offences. 4. Heard Sri.Nikhil Sankar S., the learned counsel for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has any complicity in committing the offences alleged against him. It is solely on the basis of the confession made by the 1[st] accused, the petitioner has been implicated as an accused. The confession of the 1[st] accused is inadmissible in evidence. The petitioner’s custodial interrogation is not necessary B.A No.1427/2024 **-: 4 :-** and no recovery is to be effected. The learned counsel relied on the judgment of the Honourable Supreme Court in **Ragini Dwivedi @ Gini @ Rags v. The State of Karnataka** [2021(1) Supreme 746] to drive home his contention that, there is no legal bar in granting an order of pre-arrest bail, in cases where only intermediate quantity of contraband is involved. In the case on hand, since it is turned out that the contraband is not MDMA but only Methamphetamine, the contraband is of an intermediate quantity. Hence, the petitioner is entitled to be released on bail. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a Bail Objection Report. He has, _inter alia,_ stated that, on 24.08.2023, the accused 1 and 2 with the help of the 3[rd] accused, had procured the contraband articles. The 1[st] accused was found in possession of the contraband and B.A No.1427/2024 **-: 5 :-** Rs.8150/- being the sale proceeds. In the subsequent search that was conducted in the house of the 2[nd] accused, Rs.64,500/- was also recovered. The 1[st] accused had also confessed the involvement of the accused 2 and 3 in the crime. In the Chemical Analysis Report, it is turned out that the contraband is Methamphetamine. Even though efforts were made out to trace the petitioner, he is absconding. The petitioner is a person who has delivered the contraband to accused 1 and 2. There are several monetary transactions between the petitioner and other accused. His call records and bank transactions show that, he is actively involved in the crime. The petitioner’s custodial interrogation is necessary for proper investigation of the crime and for finding out the source from where the contraband was purchased. If the petitioner is granted an order of prearrest bail, it would certainly hamper the investigation. B.A No.1427/2024 **-: 6 :-** Hence, the application of the petitioner may be dismissed. 7. The prosecution allegation is that the accused had hatched a conspiracy and had procured the contraband articles, which was for commercial sale. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision B.A No.1427/2024 ## **-: 7 :-** of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. ## 9. 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 pre-arrest bail being an extra B.A No.1427/2024 ## **-: 8 :-** ordinary privilege, should be granted only in 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. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary, the recovery is to be effected and the investigation is only at the nascent stage, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. B.A No.1427/2024 ## **-: 9 :-** Hence, I hold that, this is not a fit case to grant the petitioner an order of pre-arrest bail. In the result, The pre-arrest bail application of the petitioner 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 on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioner do 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** Sbna/ B.A No.1427/2024 ## **-: 10 :-** ## `APPENDIX OF BAIL APPL. 1427/2024` |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure 1`|`TRUE COPY OF THE F.I.R IN CRIME`| ||`NO:1259/2023`<br>`OF`<br>`POOJAPPURA`<br>`POLICE`| ||`STATION,THIRUVANANTHAPURAM DISTRICT`| |`Annexure 2`|`TRUE COPY OF THE REMAND REPORT OF 1ST AND`| ||`2ND ACCUSED IN CRIME NO:1259/2023 OF`| ||`POOJAPPURA`<br>`POLICE`| ||`STATION,THIRUVANANTHAPURAM DISTRICT`| |`Annexure 3`|`TRUE COPY OF THE ORDER IN CRL M.P`| ||`NO:13080/2023 & CRL M.P NO:13310/2023 OF`| ||`ADDITIONAL`<br>`SESSIONS`<br>`JUDGE-,`| ||`THIRUVANANTHAPURAM DATED 10/01/2024`| |`Annexure 4`|`TRUE COPY OF DISCHARGE SUMMARY ISSUED BY`| ||`CONSULTANT DOCTOR, S.U.T HOSPITAL,`| ||`THIRUVANANTHAPURAM DATED 10/01/2019`| |`Annexure 5`|`TRUE COPY OF THE APPRECIATION CERTIFICATE`| ||`GRANTED TO THE PETITIONER`|