Kerala High Court
Shiraz V.H vs State Of Kerala on 20 September, 2019
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941
Crl.MC.No.6322 OF 2019(A)
AGAINST THE ORDER DATED 21.08.2019 IN CRL.M.C 2793/2019 OF THE
COURT OF SESSIONS, PALAKKAD DIVISION
CRIME NO.05/2019 OF KOLLENGODE EXCISE RANGE OFFICE , PALAKKAD
PETITIONERS/ACCUSED NO.1 &2:
1 SHIRAZ V.H
AGED 30 YEARS
S/O. ASSAINAR, UNNIPPIRI VEETIL, THIRUVANTHRA,
MANATHALA VILLAGE, CHAVAKAD THALUK, THRICHUR
DISTRICT.
2 KANNAN,
AGED 31 YEARS
S/O. BALAKRISHNAN, PUKKAYIL HOUSE, EDAKKAZHIYOOR,
MALLADU, PUNNAYUR VILLAGE, CHAVAKAD THALUK, THRICHUR
DISTRICT.
BY ADV. SRI.E.A.HARIS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY SRI.C.N.PRABHAKARAN, SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.6322 OF 2019
2
ORDER
Dated this the 20th day of September 2019 The petition on hand is preferred by petitioners against an order passed by Court of Sessions, Palakkad (for short 'the trial court') on 21.8.2019 granting bail to the petitioners. Crl.M.C.No.2793 of 2019 was filed in NDPS crime No.05 of 2019 of Kollengode Excise Range, Palakkad registered for offences punishable under Sections 20(b) (ii) B, 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). In Crl.M.C No.2793 of 2019 under Section 439 of Cr.P.C, the petitioners prayed for grant of statutory bail, in view of the non filing of the final report within 180 days. The court concerned has allowed the application on being convinced of the passage of 180 days and therefore, entitlement of the petitioners to obtain bail. While allowing the application and granting bail to them, the court concerned has imposed 4 conditions, the first among which is extracted Crl.MC.No.6322 OF 2019 3 hereunder:-
" 1. The petitioners shall be released on bail upon execution of bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of this court and on deposit of a sum of Rs.50,000/- (Rupees Fifty Thousand Only) each as cash security simultaneous to the execution of bail bonds. The sureties must be their parents and close relatives."
2. Aggrieved by the condition imposed as above, the present Crl.M.C is filed by accused Nos.1 and 2. The contention of Sri.Haris E.A, the learned counsel for the petitioners was that, though statutory bail was granted to petitioners on 21.08.2019, they were prevented from enjoying the fruits of the order in view of their inability to comply with condition No.1.
3. The learned counsel has produced Annexures A2 to A4 alongwith the petition on hand to substantiate the factum that petitioners are not in a position to comply with condition No.1 in the order granting bail. Annexure A2 is the copy of the Ration Card of the 1st petitioner, Annexure A3 is the rental deed executed by the mother of the 2 nd petitioner and Annexure A4 is the copy of the S.S.L.C certificate of the 2 nd petitioner. Annexure A2 was produced by the learned counsel Crl.MC.No.6322 OF 2019 4 to establish that the 1st petitioner is the grand child of the holder of a Ration Card which incorporates about 20 members as beneficiaries. Annexure A3 is the rental agreement which was produced to establish that the 2nd petitioner does not own a house but is residing in a rented one. Annexure A4 is a document produced to establish the relationship of the 2nd petitioner with the tenant in Annexure A3.
4. It is pertinent to note that the order granting bail was passed on 21.08.2019. It is true that evenafter passage of almost one month, the petitioners are still in custody which according to them is due to their incapacity to comply with condition No.1. Annexures A2 to A4 are produced alongwith the petition on hand with a view to establish that the petitioners are unable to procure parents and close relatives as solvent sureties, for want of landed property in their name. Documents produced are inadequate to take a view that parents and close relatives of petitioners are not holding any landed property. But, it is revealed from the impugned order that statutory bail was granted to petitioners on the court being convinced of the custody of petitioners for 180 days without the investigation being completed. It is the Crl.MC.No.6322 OF 2019 5 entitlement of petitioners to be released on bail, if the final report to chargesheet them is not laid within 180 days. Grant of bail with conditions imposed on petitioners, which they are unable to comply with, is improper. Only when conditions, practical to be complied with are imposed, the grantees of the order could enjoy the benefits of the order. No person will choose to remain in custody evenafter obtaining an order granting him bail, unless being restrained from executing the same for reasons beyond his control.
5. In the case on hand, Court of Sessions, Palakkad has imposed condition No.1, whereby the petitioners were directed to execute bond for Rs.1,00,000/- with two solvent sureties who are only their parents and close relatives. The court has also directed petitioners to deposit a sum of Rs.50,000/- each as cash security simultaneous to the execution of bail bonds. Condition No.3 in the order under challenge directs the petitioners to surrender their passports if they hold one or else to file an affidavit if they do not hold one. The conditions imposed in the order granting bail are meant to procure the attendance of petitioners in further proceedings during trial, before the court. With condition No.1 directing Crl.MC.No.6322 OF 2019 6 the petitioners to execute the bond and condition No.3 directing them to surrender their passports itself, the requirement could well be secured. Execution of bond with two solvent sureties will suffice. It is not necessary to insist for execution of a bond with parents and close relatives as solvent sureties. It is true, the court granting bail is to impose conditions at it's discretion. But, the discretion must not be exercised by the courts arbitrarily by imposing conditions which are unexecutable by the accused. The exercise of discretion must not be to the prejudice of the accused and must not restrain the party from enjoying the fruits of the order granted to him.
6. For the foregoing reasons, despite the factum that the intended purpose of the petitioners is not served with by the documents produced, in view of the factum apprised by the learned counsel that the petitioners are still in custody, this Court finds justification in setting aside Condition No.1 in Annexure A1 order to the extend it directs execution of a bond by petitioners with parents and close relatives of each of them as solvent sureties and payment of Rs.50,000/- each as cash security.
Crl.MC.No.6322 OF 2019 7 In the impact, condition No.1 is modified directing each of the petitioners to execute bond for Rs.1,00,000/- with two solvent sureties, each for the like sum to the satisfaction of the trial court. Condition Nos.2 to 4 are maintained for compliance.
In the result, the Crl.M.C stands allowed.
Sd/-
MARY JOSEPH JUDGE NAB Crl.MC.No.6322 OF 2019 8 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE CERTIFIED COPY OF THE ORDER IN CRL.M.C. NO. 2793/2019 OF THE HON'BLE SESSIONS COURT, PALAKKAD DATED 21.08.2019.
ANNEXURE A2 TRUE COPY OF THE RATION-CARD BEARING NO.1844004633.
ANNEXURE A3 TRUE COPY OF THE RENT AGREEMENT DATED 18.01.2019.
ANNEXURE A4 TRUE COPY OF THE SSLC CERTIFICATE BEARING REGISTER NO.233294.
ANNEXURE A5 TRUE COPY OF THE AADHAAR CARD BEARING NO.835357772731.
RESPONDENT'S/S EXHIBITS: NIL
//TRUE COPY//