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2020 DIGILAW 820 (MP)

Thameem Ansari v. State Of Madhya Pradesh

2020-08-20

RAJEEV KUMAR DUBEY

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JUDGMENT Rajeev Kumar Dubey, J. - Heard with the aid of case diary. 2. This is sixth bail application under Section 439 of the Cr.P.C. for grant of bail. Applicant Thameem Ansari was arrested on 11/10/2017 in connection with Forest Crime No.28060/2002 registered at Police Station Regional Tiger Strike Force, District Sagar for the offences punishable under Sections 2, 9, 39, 44, 48- A, 49-B, 51, 52 of the Wild Life Protection Act, 1972. 3. First and second bail applications filed by the applicant were dismissed on merit by the Coordinate Bench of this Court vide orders dated 16/03/2018 & 13/07/2018 passed in M.Cr.C.Nos. 23455/2017 & 13906/2018 respectively. The third, fourth & fifth bail applications were dismissed on merit by this Court vide orders dated 05.12.2018, 06.03.2019 & 18/09/2019 in M.Cr.C.Nos.44665/2018, 4899/2019 & 36480/2019. 4. As per the prosecution case co-accused, Ajay Singh made a statement to the Regional Tiger Strike Force, Sagar in forest Crime No.28060/02 under Section 50(8) of the Act that applicant Tameem Ansari is involved in transportation and smuggling of red-crowned roof turtles exclusively found in Chambal River and entered at Serial No.14B of Part-II of Schedule I of IUCN Red List. During the investigation, it was learnt that applicant Tameem Ansari was confined in Central Jail, Chennai in connection with DRI PS Crime No.14/2017 under Section 135 of the Customs Act, 1992. He was arrested on 11.10.2017 in the present case. Applicant Tameem Ansari disclosed in his statements to the competent Forest Authority under Section 50 (8) of the Act that in the year, 2014, he came in contact with a person named Benty in Srilanka. He told him that there is a great demand for turtles in Hong Kong and Malaysia. He also showed photographs of turtles found in India on the internet and Facebook and thereafter he contacted co-accused Ajay Singh, who delivered him such turtles. He purchased 450 turtles of three different varieties including expensive red-crowned roof turtles for a sum of Rs.3 lacs. These turtles were transported in the Month of September 2016 in his Car No.TN 38 AC 300 from Agra to Chennai. These turtles were to be sent from Tuticorin to Srilanka; however, the DRI seized those turtles and he was arrested along with his agent. These turtles were transported in the Month of September 2016 in his Car No.TN 38 AC 300 from Agra to Chennai. These turtles were to be sent from Tuticorin to Srilanka; however, the DRI seized those turtles and he was arrested along with his agent. After being released on bail, he expanded his network and came in contact with co-accused persons namely Mannivannan and Sanil and traded in rare turtles. In August 2017 Officers of DRI seized 2500 live turtles from the house of his agent Venkatesh and he was again arrested. 5. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the matter. It is further submitted that although earlier bail applications filed by the applicant were dismissed on merits, but the applicant is in custody since 11/10/2017 and the trial is still pending inspite of the order passed by the Hon'ble Apex Court in Special Leave to Appeal (Cri.) No.8179/2018 whereby the trial Court was directed to conclude the trial within six months. The normal functioning of the Courts are kept in abeyance due to the outbreak of Covid-19 and there is no progress in the trial for the last three months and the situation is unlikely to change in the near future. Learned counsel further submitted that the applicant is confined in Puzhal Central Jail, where 47 inmates have been tested positive for Covid-19 and that numbers are increasing every day, so the safety of the applicant is also in danger. The applicant is highly vulnerable to catch Covid-19 due to his previous medical history as he suffers from multiple ailments which have reduced his immunity to a greater extent. The Hon'ble Apex Court vide order dated 23/03/2020 passed in Suo Motu Writ Petition (c) No.1/2020 expressed concerns over the health crisis arising out of Covid-19 and directed the State and Union territories to constitute High Power Committee to determine which class of prisoner can be released on parole or interim bail. Learned counsel further submitted that the applicant is facing the trial for the offences punishable under Sections 2, 9, 39, 44, 48-A, 49-B, 51, 52 of the Wild Life Protection Act, 1972, wherein the maximum sentence prescribed is seven years, so the applicant is entitled to get interim bail on the basis of the order passed by the Hon'ble Apex Court. The learned trial Court wrongly rejected the applicant's bail application. The applicant has been in custody since 11/10/2017. Hence, it is prayed that either the applicant be released on regular bail or he be released on temporary bail for a period of three months. 6. On the other hand, learned counsel for the State opposed the prayer and submitted that earlier five bail applications filed by the applicant have been dismissed on merits and there has been no change in circumstances thereafter. Moreover, the application for bail filed by the applicant has also been rejected by the Hon'ble Apex Court. So, the applicant should not be released either on regular bail or on temporary bail. 7. The applicant sought bail mainly on account of the prevalent conditions due to the pandemic and the main contention of the applicant is that he was "entitled" to bail as per the policy framed by the High Powered Committee for release of prisoners against whom cases have been registered for offences punishable for imprisonment for a period up to 7 years and learned trial Court wrongly rejected his prayer. 8. Hon'Ble Supreme Court's order dated March 23 passed in SUO MOTU WRIT PETITION (CIVIL) NO.1/2020 Contagion of Covid 19 Virus in Prisons reported in 2020 SCC OnLine SC 344 for release of prisoners is not to be interpreted so as to mean that the prisoners have to be "compulsorily" released from prisons. The same depends on various factors including, the gravity of the offence involved. The nature of the offence, the severity of the offence with which an under-trial is charged with or any other relevant factor, which the Committee may consider appropriate, would be the guiding factors for taking a decision. 9. The position was also clarified by the Hon'ble Supreme Court in its order dated 13th April, 2020 where the Court observed:- "We make it clear that we have not directed the States/ Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure the States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released." 10. In Madhya Pradesh, the High Powered Committee was constituted pursuant to directions of the Supreme Court. In Madhya Pradesh, the High Powered Committee was constituted pursuant to directions of the Supreme Court. Earlier 5 vide order dated 23/03/2020 the High Power Committee had directed that only those under trial prisoners who are facing trial for the offences in which maxim sentence is prescribed up to 5 years be released on interim bail for the period of 45 days. Although, thereafter Committee again issued the direction that those undertrial prisoners who are facing trial for the offences in which maxim sentence is prescribed up to 7 years also be released on interim bail for the period of 90 days, but in that direction committee excluded the undertrial prisoners who are facing trial for the offences punishable under the Wild Life Protection Act and some other special Acts. 11. Even the Hon'ble Apex Court in the case of Bimla Devi (Smt) v. State of Bihar, (1994) 2 SCC 8 held "grant of provisional bail by the magistrate despite the rejection of two earlier bail applications by the High Court is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. Hence the learned trial court did not commit any mistake in rejecting the applicant's bail application. 12. Hon'Ble Apex Court earlier had directed the trial Court to conclude the trial within six months, but thereafter Hon'ble Apex Court again extended that period by order passed in Special Leave to Appeal (Cri.) No.10040/2019. The trial was held up due to Covid-pandemic. Now the Chief Justice of High Court of Madhya Pradesh has issued the direction to lower Courts to start the trial of the cases in which time frame was given by the Hon'ble Apex Court or High Court. So it is expected that the trial of the case will again start soon. 13. It is also contended that in Puzhal Central Jail, where the applicant is confined 47 inmates have been tested positive for Covid-19 and that numbers are increasing every day, so the safety of the applicant is also in danger. For the safety of the applicant he may be transferred in another Jail or any other safe place as jail administration thinks fit. 14. First and second bail applications filed by the applicant were dismissed on merit by the Coordinate Bench of this Court vide orders dated 16/03/2018 & 13/07/2018 passed in M.Cr.C.Nos. 23455/2017 & 13906/2018 respectively. For the safety of the applicant he may be transferred in another Jail or any other safe place as jail administration thinks fit. 14. First and second bail applications filed by the applicant were dismissed on merit by the Coordinate Bench of this Court vide orders dated 16/03/2018 & 13/07/2018 passed in M.Cr.C.Nos. 23455/2017 & 13906/2018 respectively. The third, fourth & fifth bail applications were also dismissed on merit by this Court vide orders dated 05.12.2018, 06.03.2019 & 18/09/2019 in M.Cr.C.Nos.44665/2018, 4899/2019 & 36480/2019 respectively. The bail application of the applicant was also rejected by the Hon'ble Apex Court, vide order dated 13/01/2020, thereafter there has been no change in circumstance. 15. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director, (2007) 1 SCC 70 held that bail, can not be granted solely on the ground of long incarnation in jail and inability of the accused to conduct the defence. 16. It is alleged that the applicant was involved in the smuggling of red crowned roof turtles and other two offences are also registered against the applicant. It is also alleged that after getting bail in the earlier case the applicant again indulged himself in the similar crime, so looking at the facts and circumstances of the case, this Court is not inclined to enlarge the applicant either on regular bail or on temporary bail. Hence applicant's bail application is rejected. 17. Although the safety of the applicant should be taken care of by the jail authority. Besides, it is also the duty of the trial Court, to see that the applicant is kept in jail with proper safety so that his health is not threatened. Therefore, Director General of prison and I.G. prison concerned of Tamilnadu is directed to examine the matter and if they find any threat to the health of the applicant in Puzhal Central Jail, where the applicant is kept, they should immediately transfer the applicant to another prison or any other safe place as they think fit and intimate to the Principal Registrar (Judicial) of the High Court of M.P. as to what action has been taken by them in compliance of this order. 18. Office is directed to send the copy of this order to the Director General of Prison/ I.G., Prison of the concerned Tamilnadu for necessary compliance. Certified copy as per rules.