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2019 DIGILAW 60 (MAN)

Theophilus KKS v. State of Manipur

2019-09-17

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. BREIF CASE OF THE PETITIONER: 1. The prosecution story of the case is that on 25.05.2018 the petitioner along with some other persons were arrested by the personnel of NAB PS on the allegation of possession of contraband drugs. 2. The petitioner/accused was produced before the Learned Special Court, ND & PS, Manipur on 05-06-2018 by the I.O. for judicial remand and accordingly the Learned Special Trial Court allowed the prayer of the I.O. and remanded him to Judicial Custody. 3. When the family members of the petitioner/accused went to visit him at Central Jail, Sajiwa Imphal he was having breathing and kidney problems and as such he faced difficulties in passing urine. The petitioner was also having severe abdomen pain. In this regard the Ld. Special trial court passed an order dated 20-06-2018 calling for medical report from SP, MCJ, Sajiwa. 4. The Medical Report dated 26-06-2018 of the petitioner was forwarded by the Superintendent, Manipur Central Jail, Sajiwa to the Ld. Special Court and in the said report it was diagnosed that the petitioner was suffering from Chollitheasis Gall Bladder Stone and left kidney cyst and the accused was advised to undergo surgery at the earliest. The radiologist report of the INTMS Hospital mentions "Gall bladder shows few calculi, largest measuring 10 mm. Wall thickness is normal". 5. The Special Trial Court passed another order dated 14-08-2018 thereby directing the Superintendent of Manipur Central Jail, Sajiwa to make such arrangement or take such steps as are necessary for enabling the accused/petitioner to get the surgery performed. A compliance report was also to be submitted within 10 days of the receipt of the order and if the jail authorities cannot make the arrangement the matter was to be intimated to the Special Court without delay so that the order may be modified. 6. On 29-08-2018 after considering the report dated 27-08-2018 from the MCJ, Sajiwa, the Special Court granted interim bail to the petitioner till 01-10-2018 to enable his proper treatment/surgery furnishing a PR bond of Rs. 2 lakhs and two sureties of like amount each, who shall be government employees. It was also ordered that the petitioner shall surrender along with the medical documents on 01-10-2018 if he is capable and if not, he shall file application for extension of interim bail for valid reasons with supporting documents. 7. 2 lakhs and two sureties of like amount each, who shall be government employees. It was also ordered that the petitioner shall surrender along with the medical documents on 01-10-2018 if he is capable and if not, he shall file application for extension of interim bail for valid reasons with supporting documents. 7. The petitioner due to history of allergy and high eosinophils count the operation was postponed for further medication and to be performed after the normalization of eosinophils count and the Trial Court was pleased to extend the interim bail time to time. 8. The operation of the petitioner was performed on 30-11-2018 and was discharged on 02-12-2018, the petitioner was restricted to active movement and the doctor also advised for his further treatment at a well equipped hospital. However, after his surgical operation the accused developed septic/infections at the operated body part. Thereafter, he was taken to the CMC Hospital on 21-12-2018 and was advised for daily dressing. 9. The petitioner filed an application for making the interim bail into absolute bail, however, the Special Trial Court turned down the application on 21-12-2018 and ordered that the accused shall surrender immediately failing which his P.R. bond may be forfeited. 10. After the passing of the said order, the winter vacation for the said trial court was commenced and it is due to open on 31-1-2019. It is pertinent to mention that the treatment of the petitioner/accused is done on daily basis post operation at the Hospital and such care and proper treatment is not availed to him at the Judicial Custody, therefore, sending him again in the judicial custody will be harmful to his health and may cause disastrous to his life. 11. Learned trial court rejected the application of the petitioner for granting absolute bail on the ground that the nature of illness was not specified and there is nothing in the discharged summary that the operation was rendered him unable for movement. 12. In the case on merits, there is no iota of evidence in the allegation of the arresting authority as no contraband substances were recovered from the possession of the petitioner/accused. Accused No. 2 and 3 in the FIR has already been granted bail. The accused No. 1 being a Myanmar National is not granted bail till date. 13. 12. In the case on merits, there is no iota of evidence in the allegation of the arresting authority as no contraband substances were recovered from the possession of the petitioner/accused. Accused No. 2 and 3 in the FIR has already been granted bail. The accused No. 1 being a Myanmar National is not granted bail till date. 13. The investigation has almost completed so there is no chance of hampering or tampering the prosecution witnesses by the petitioner during the course of trial. Hence this bail application before this Hon'ble Court. The objections filed by the Respondent are as follows: 14. The Petitioner who is the named Accused No. 4 in the connected FIR Case was arrested on 25-05-2018 at around 4.30 pm. from a rented house at Nungourok village under Tengnoupal Police Station, Tengnoupal District, Manipur along with 3 (three) other co-accused, one of them is Myanmar National. After complying all the formalities and procedures prescribed under the relevant Acts, the police team accompanied by expert person of FSL seized 1 (one) black colour polythene bag containing 2 (two) polythene packets weighing 500 (five hundred) grams each in total 1(one) kg of Heroin powder and other articles from their possession in the presence of independent witnesses. 15. During the course of investigation, it is revealed that the present petitioner was actively involved to bring the prospective customer of the seized Heroin. However, while they were waiting for the said prospective customer, the police team raided the rented house and seized the said heroin from their possession. 16. The investigation further reveals that all the named accused persons including the present petitioners are actively involved in trafficking/smuggling contraband goods across the International Border with Foreign national. 17. Taking into consideration of the ailment of the present petitioner based on the report of the Jail Authority, the Ld Special Judge, ND & PS granted interim bail on 29-08-2018 till 01-01-2019 on medical ground with a condition among others that he shall surrender along with medical documents on 01-01-2019 if he is capable and if not, he shall file application for extension of the interim bail for valid reason with supporting documents. But, the present petitioner failed to comply with the said conditions and after a lapsed of about 2 (two) months and 21 (twenty one) days, the petitioner filed one Misc. But, the present petitioner failed to comply with the said conditions and after a lapsed of about 2 (two) months and 21 (twenty one) days, the petitioner filed one Misc. Application for making the interim bail order absolute which was rejected by the Ld. Special Judge for the reason stated in the order. Hence, the present petitioner does not deserve any leniency. 18. The petitioner having jumped the interim bail granted by the Ld. trial court cannot be allowed to go on bail before he surrender to the authority concerned. It is he himself created the situation for not complying the conditions imposed by the Ld. Trial Court at the time of releasing him on bail on medical ground as interim measure under Section 37 of the ND & PS Act, granting bail is an exception unless the Learned Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence charged and not likely to commit any offence while on bail. Moreover, in Criminal law parity treatment is not available to co-accused as each case is to be consider on the basis of the facts the particular accused took part in committing the alleged offence. Therefore there is a great chance of absconding of the accused person in the event of releasing him on bail on any condition as has been done in earlier occasion. 19. I have given my careful consideration to the respective submission made by the learned counsel for both parties. 20. The only point for consideration in this application is whether the petitioner herein has made out a case for regular bail and whether the Special Court is justified in dismissing his bail application. 21. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the Hon'ble Supreme Court dealt with the basic principles laid down in catena of judgments on the point of granting bail. The Court proceeded to enumerate the factors: "9... 21. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the Hon'ble Supreme Court dealt with the basic principles laid down in catena of judgments on the point of granting bail. The Court proceeded to enumerate the factors: "9... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail." 22. In the considered opinion of this Court, before granting or refusing bail, the court must satisfy itself after considering the material placed on record and further developments in the investigations or otherwise and other peculiar circumstances of each case, which show that there are sufficient grounds for releasing the applicant on bail. This Court is also of the opinion that in criminal jurisprudence, every case stands on different footing and no straight jacket formula can be adopted in the facts of each case. 23. I am conscious of the fact that this Court should not ordinarily, save in exceptional cases, interfere with the orders granting/refusing bail by the Trial Court. I am also provided with the facts and figures about the petitioner's medical records. It is not in dispute that A-2 and A-3 were already. granted bail and the learned counsel for the petitioner apart from highlighting that he is entitled for regular bail and also submitted that he be considered on medical grounds because of his various ailments as certified by leading doctors including the Medical Officer. 24. It is also seen from the record that on operation was performed against the petitioner on 30.11.2018 and he was discharged on 02.12.2018 and the discharge summary advised for further treatment and also to restrict his active movement. Due to septic infections the petitioner/accused was taking to CMC Hospital on 23.12.2018 and was advised for daily dressing. 24. It is also seen from the record that on operation was performed against the petitioner on 30.11.2018 and he was discharged on 02.12.2018 and the discharge summary advised for further treatment and also to restrict his active movement. Due to septic infections the petitioner/accused was taking to CMC Hospital on 23.12.2018 and was advised for daily dressing. Therefore the learned trial court instead of seeking further medical documents ought to have appreciated the medical records. Therefore, I am inclined to release the petitioner/accused on absolute bail. 25. In the result, (a) the petitioner is released on bail (b) the petitioner is directed to execute two sureties like sum of Rs. 1,00,000/- each to the satisfaction of the Learned Special Judge, NDPS, Manipur (c) the petitioner is directed to report before the Learned Special Judge, ND & PS, Manipur daily at 10 A.M., until further orders. (d) the petitioner is directed not to tamper or hamper the witnesses.