Shyam Kumar P.S. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6103 OF 2024 ``` ``` CRIME NO.371/2024 OF Alakode Police Station, Kannur ``` ## **`PETITIONER/S:`** ``` SHYAM.KUMAR. P.S. AGED 37 YEARS S/O. NARAYANAN, AGED 37 YEARS, KAPPIMALA, VIJAYAGIRI, ALAKODE AMSOM, KANNUR DISTRICT, PIN - 670571 ``` ``` BY ADVS. V.A.SATHEESH V.T.MADHAVANUNNI ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SMT.SEETHA.S, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.6103 of 2024** ``` 2 ``` **Dated this the 2[nd] day of August, 2024** ## **O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS), by the sole accused in Crime No.371/2024 of the Alakode Police Station, Kannur, which is registered against him for allegedly committing the offence punishable under Section 3 r/w 25(1-B), (a) of the Arms Ac. The petitioner was arrested and remanded to judicial custody on 14.06.2024. 2. The crux of the prosecution case is that; on 02.06.2024, at around 20.30 hours, the accused was found in possession of meat of a sambar deer and also a country made gun. The accused was arrested on the spot with the contraband articles. Thus, the accused has **B.A. No.6103 of 2024** ``` 3 ``` committed the above offences. 3. Heard; Sri. V.A Satheesh, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. 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 committed the above offences. In any given case, the petitioner has been in judicial custody for the last 49 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the petitioner was found ``` 4 ``` ## **B.A. No.6103 of 2024** in conscious possession of meat of a sambar deer and a country made gun. If the petitioner is released on bail, there is a likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. 6. The allegation against the petitioners is that, petitioner was found in conscious possession of meat of a sambar deer and a country made gun. The petitioner was arrested on the spot with the contraband articles. The fact remains that the petitioner has been in judicial custody for the last 49 days, the investigation in the case is complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is ``` 5 ``` ## **B.A. No.6103 of 2024** the presumption of innocence, until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **Dataram Singh v. State of U.P** ., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in **B.A. No.6103 of 2024** ``` 6 ``` judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 49 days, the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: ``` 7 ``` ## **B.A. No.6103 of 2024** (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of ``` 8 ``` ## **B.A. No.6103 of 2024** the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the ``` 9 ``` ## **B.A. No.6103 of 2024** petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663]. **sd/-** **C.S.DIAS, JUDGE** rmm/2/8/2024