Shidhin N S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ## **`BAIL APPL. NO. 9084 OF 2022`** ## **`PETITIONER:`** ``` SHIDHIN N S AGED 34 YEARS S/O SHANMUGHAN N.K, RESIDING AT NAMBIYATH HOUSE, VADANAPPALLY, THRISSUR, PIN - 680614 BY ADVS. THOMAS ABRAHAM ASWIN.P.JOHN R.ANANTHAPADMANABAN MERCIAMMA MATHEW PAUL BABY ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2FOREST RANGE OFFICER MANNAMANGALAM FOREST STATION, THRISSUR DISTRICT, KERALA, PIN - 680014 ``` ## **`PRESENT:`** ``` SRI. NAGARAJ NARAYANAN, SPL.GP (FOREST) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.9084 OF 2022 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Bail Appl. No.9084 of 2022** **---------------------------------------------Dated this the 17[th] day of August, 2023** ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code (Cr.P.C.) 2. This Bail Application is filed by the accused in OR No.2 of 2022 of Mannamangalam Forest Station, Palakkad. The above case is registered against the petitioner alleging offences punishable under Sections 2(16), 9, 39(3)(a,b), 39(2), 42, 49A(b), 49B(i)(iii), 50, 51 and 52 of Wildlife Protection Act, 1972. 3. The prosecution case is that two elephant tusks having obtained from some persons and the same was procured by them for trading the same. It is also the prosecution case that, the petitioner is also ``` BAIL APPL. NO.9084 OF 2022 ``` 3 involved in the said act and he has been implicated as an accused in the above case. 4. Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader(Forest). 5. The learned counsel appearing for the petitioner submitted that he is not involved in this case. It is submitted that his friend one Dhayalal, resident of Arattupuzha area in Thrissur District who suffers from visual disability was dire need for some money for undergoing the treatment for his eyes. It is submitted that about four months before the date of registration of the crime, the aforesaid Dhayalal told the petitioner that he knows one person by name Ayyappankutty @ Unnikuttanasan who was a former employee of an old illam Vasudevan Namboothiri Keezhottukara, Kadalayi Mana in Thrissur District, from where the aforesaid employee got two elephant tusks 4 ``` BAIL APPL. NO.9084 OF 2022 ``` given to him for disposal as waste by another employee named Mani, who was in charge of the general affairs of the tharavadu working as ‘Karyasthan.’ It is submitted that Mani entrusted the two tusks to Ayyappankutty for destructing the same, but Ayyappankutty instead of destructing the tusks took the same to his house and kept it there. It is submitted that, Ayyappankutty revealed these details to Dhayalal and it was on the basis of such information that Dhayalal thought of selling the tusks to somebody to meet the expenses of his eye surgery. 6. A detailed case is set up in the bail application to prove that the petitioner is not connected to this case. The learned Special Government Pleader (Forest) takes me through the statement filed by the 2[nd] respondent and submitted that the custodial interrogation of the petitioner is necessary. The Special Government Pleader raised ``` BAIL APPL. NO.9084 OF 2022 ``` 5 three points for opposing the bail application. The Special Government Pleader submitted that there are witnesses to be examined and while examining the witnesses, the petitioner has to be with them and the second point is that the petitioner is an influential person and therefore, if the petitioner is released on bail, he will influence the witnesses. The third point submitted by the Special Government Pleader is that the source of the ivory is to be traced out, for which the custodial interrogation of the petitioner is necessary. 7. This Court considered the contentions of the petitioner and the learned Special Government Pleader(Forest). When this bail application came up for consideration on 12.12.2022, this Court passed the following order; “The petitioner is the 6[th] accused in OR No.2 of 2022 registered by Mannamangalam Forest Station, ``` BAIL APPL. NO.9084 OF 2022 ``` 6 Thrissur District alleging offences under Sections 2(16), 9, 39(3)(a,b), 39(2), 42, 49A(b), 49B(i)(iii), 50, 51 and 52 of Wildlife Protection Act, 1972. It is submitted that he has been falsely implicated above said case. He has absolutely no role in the above transaction. It is submitted that he is ready and willing to co-operate with the investigation. 2. Therefore, the petitioner shall appear before the Investigation Officer on 15.12.2022 and shall make himself available for interrogation on that day or any other day/days as directed by the Investigating Officer. 3. The petitioner shall not be arrested in the meanwhile.” 8. It is an admitted case that the petitioner surrendered before the Investigating Officer as directed by this Court. But the petitioner submitted that he was manhandled by the Investigating Officer during interrogation and harassed by the Investigating Officer when he appeared before the Investigating ``` BAIL APPL. NO.9084 OF 2022 ``` 7 Officer. This is disputed by the Special Government Pleader (Forest). 9. This Court considered the contentions of the petitioner and the Special Government Pleader(Forest). This bail application is pending before this Court from 2022 onwards. There is an interim order in this case restraining the arrest of the petitioner. Evennow, that order is in force. The respondents have not taken any steps to vacate the above order. At this distance of time, if this bail application is dismissed, I think, it will be an injustice. Moreover, the only reason to oppose the bail application is that the custodial interrogation of the petitioner is necessary. The elephant tusks is already seized. Therefore, there is no question of any further recovery. As far as finding out the source of the ivory, I think the custodial interrogation of the petitioner may not be necessary. The petitioner can be directed to ``` BAIL APPL. NO.9084 OF 2022 ``` 8 appear before the Investigating Officer on alternative days for a period of two weeks and thereafter once in a week, till investigation is over. With these conditions this bail application can be allowed. 10. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870)** , after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same in as much as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision and considering the facts and ``` BAIL APPL. NO.9084 OF 2022 ``` **==> picture [7 x 10] intentionally omitted <==** circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall appear before the Investigating Officer within three weeks from today and shall undergo interrogation; 2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned; 3. Petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as 10 ``` BAIL APPL. NO.9084 OF 2022 ``` to dissuade them from disclosing such facts to the Court or to any police officer; 4. Petitioner shall not leave India without permission of the jurisdictional Court; 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; 6. The petitioner shall appear before the Investigating Officer on alternative days at 11.A.M., for a period of two weeks and thereafter on all Monday’s at 11. A.M., till final report is filed. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- nvj ## **P.V.KUNHIKRISHNAN JUDGE**