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2021 DIGILAW 9 (TS)

State of Telangana v. State of Telangana

2021-01-05

KUNURU LAKSHMAN

body2021
ORDER : Kunuru Lakshman, J. 1. This Criminal Petition is filed under Section - 439(2) of the Code of Criminal Procedure (Cr.P.C.) to cancel the bail granted to respondent - accused vide order dated 08.10.2020 in Crl.P. No. 4614 of 2020. 2. Respondent herein is accused No.1 in Crime No. 19 of 2020 of Excise Police Station, Secunderabad. The offence alleged against him is under Section - 8(c) read with 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). 3. Heard the learned Public Prosecutor appearing on behalf of the petitioner - State and Mr. Ajay Kumar Madisetty, learned counsel for the respondent - accused No. 1. 4. The respondent-accused has filed an application seeking regular bail vide Criminal Petition No. 4614 of 2020, and this Court vide order dated 08.10.2020 has granted bail to the respondent herein on certain conditions on considerations of the following contentions of respondent No.1: (a) 155 Grams of Hashish oil was seized from the petitioner/A1, which is less than the commercial quantity; (b) A-2 to A-4 were arrested and released on regular bail; (c) The petitioner was arrested on 27-09-2020; and (d) There is no other case against him of similar nature. Thus, this Court has granted the bail considering the submission made by the learned counsel for the petitioner therein that accused Nos. 2 to 4 were arrested and released on regular bail. 5. The petitioner - State has filed the present application to cancel the said bail granted to respondent - accused No. 1 on the ground that the respondent - accused No. 1 has deliberately misrepresented this Court and obtained favourable orders. The respondent herein has misrepresented this Court that accused Nos. 2 to 4 were arrested and released on bail. But, the fact remains that accused Nos. 2 to 4 were remanded to judicial custody and they were not enlarged on bail. It is further contended by the learned Public Prosecutor that the bail application filed by accused No. 2 vide Crl.M.P. No. 1918 of 2020 was dismissed on 17.10.2020 by the Sessions Court. Similarly, bail application filed by accused Nos. 3 to 5 vide Crl.M.P. No. 2070 of 2020 was also dismissed by order dated 19.10.2020. The learned Public Prosecutor has filed copies of both the said orders. 6. Similarly, bail application filed by accused Nos. 3 to 5 vide Crl.M.P. No. 2070 of 2020 was also dismissed by order dated 19.10.2020. The learned Public Prosecutor has filed copies of both the said orders. 6. The above facts would reveal that this Court granted bail to the respondent - accused No. 1 on consideration of the submissions made by the learned counsel for the respondent that accused Nos. 2 to 4 were arrested and released on bail. It is also relevant to note that this Court has considered the said submission of the respondent - accused No. 1 as one of the considerations for granting bail to the respondent. 7. Perusal of orders dated 17.10.2020 and 19.10.2020 passed in Crl.M.P. Nos. 1918 of 2020 and 2070 of 2020 respectively by the I Additional Metropolitan Sessions Judge, Hyderabad, would reveal that accused Nos. 2 to 5 were arrested and their bail applications were dismissed. The Sessions Court has specifically pointed out that accused No. 1 has obtained bail by misrepresenting this Court stating that accused Nos. 2 to 4 were arrested and released on bail which is factually incorrect. 8. The learned counsel for the respondent - accused No. 1 would submit that he has made the submission that accused Nos. 2 to 4 were arrested and released on bail only on the instructions given by the relatives of accused No. 1 since he is in Jail and that there is a communication gap between him and the relatives of accused No. 1. He would further submit that accused No. 1 is in jail. On account of communication gap between him and the relatives of accused No. 1, the bail granted may not be cancelled. He would further submit that there is no allegation against the respondent that he has violated any of the conditions imposed by this Court while granting bail and that he is threatening the witnesses and interfering with investigation. 9. With the above submissions, the learned counsel for the respondent sought to dismiss the present petition. 10. As discussed above, this Court has granted bail to the respondent - accused No. 1 on 08.10.2020 vide Crl.P. No. 4614 of 2020 by considering the submissions made by the learned counsel for the respondent including the submission that accused Nos. 2 to 4 were arrested and enlarged on bail. In fact, the said submission is factually incorrect. 10. As discussed above, this Court has granted bail to the respondent - accused No. 1 on 08.10.2020 vide Crl.P. No. 4614 of 2020 by considering the submissions made by the learned counsel for the respondent including the submission that accused Nos. 2 to 4 were arrested and enlarged on bail. In fact, the said submission is factually incorrect. As stated above, regular bail applications filed by respondent Nos. 2 to 5 were dismissed by the Sessions Court vide orders dated 17.10.2020 and 19.10.2020 respectively. Thus, the respondent - accused No. 1 has misrepresented the facts and obtained bail. Section 439(2) of Cr.P.C. deals with 'cancellation of bail', and as per it, High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. The scope and factors to cancel the bail were fell for consideration by the Hon'ble Supreme Court in State of Bihar v. Rajballav Prasad AIR 2017 SC 630 , wherein it was held that there have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. 11. The Apex Court in Dolat Ram Vs. State of Haryana, 1995 (1) SCC 349 and also Patna High Court in Usha Devi Vs. State of Bihar, 2006 Crl.L.J. 4435 held that bail once granted should not be cancelled in a mechanical manner. It is also apt to note that the Apex Court in Ms. X v. The State of Telangana, Criminal Appeal No. 716/2018, dated 17.05.2018, after referring to the principle held by it in Neeru Yadav v. State of U.P., AIR 2015 SC 3703 , Kanwar Singh v. State of Rajasthan, 2012 (12) SCC 180 , Central Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan, (2011) 5 SCC 296 and Dolat Ram, 1995 (1) SCC 349 and also on the facts of the said case, held that the Court must bear in mind the settled principle of law that bail once granted should not be cancelled, unless a cogent case, based on a supervening event has been made out. Similar principle was held by the Apex Court in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 . 12. Similar principle was held by the Apex Court in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 . 12. In Brijeshwar Dayal Verma v. State of U.P., 1992 Crl.L.J. 411, the Allahabad High Court has considered the issue of cancellation of bail obtained by accused by misrepresentation of facts and held that where an accused obtains an order of bail in his favour by misrepresenting true facts and in fact by playing fraud upon the Court, such an order for bail is bound to be recalled. In Manoj Kuru @ Dinesh Choudhary v. State of Bihar, Cr. Misc. No. 38892 of 2006, decided on 01.12.2008, cancellation of bail on the ground of misrepresentation fell for consideration before the Patna High Court. In the said case, the accused obtained bail on misrepresentation of fact that co-accused was granted bail. On consideration of the said fact, the Patna High Court cancelled the bail granted to the accused. In Gurwinder Singh v. State of Punjab, Crl. Misc. No. M-23922 of 2008, decided on 22.05.2009, a similar issue for cancellation of bail obtained by the accused on misrepresentation of fact fell for consideration and the Punjab-Haryana High Court, on considering the fact that the accused has obtained bail by misrepresentation of fact with regard to nature of injuries received by the victim, cancelled the bail granted to the accused. Even in the present case also, the accused obtained bail by misrepresenting the fact that accused Nos. 2 to 4 were arrested and enlarged on regular bail. 13. In Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 , the Apex Court considered the following factors for cancellation of bail: (i) the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation; (iii) attempts to tamper with evidence or witnesses; (iv) threatens witnesses or investigation; (v) there is likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency; and (vii) attempts to place himself beyond the reach of his surety etc. It was also held that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not lightly be resorted to. It was also held that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not lightly be resorted to. But, in the present case, as discussed supra, the respondent - accused No. 1 obtained bail on misrepresentation of fact that his co-accused were arrested and enlarged on bail. 14. As stated above, the Apex Court has also held that bail once granted cannot be cancelled in a mechanical manner. 15. In view of the above authoritative pronouncements of law, coming to the case on hand, as discussed above, the respondent-accused No. 1 has obtained the bail by misrepresentation of fact i.e., accused Nos. 2 to 4 were arrested and enlarged on bail, which is factually incorrect. The said submission was one of the considerations by this Court for grant of bail to the respondent herein. The offence alleged against the respondent - accused No. 1 is under the provisions of NDPS. 155 grams of Hashish oil was recovered from him. 16. It is also trite to note that in State of Kerala v. Rajesh, AIR 2020 SC 721 , the Apex Court held that the jurisdiction of the Court to grant bail is circumscribed by the provisions of Section - 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It further held that to check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section - 37, viz., (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. 17. In view of the above law laid down by the Apex Court, coming to the case on hand, the offence alleged against the accused is under the provisions of the NDPS Act. The respondent herein has obtained bail vide order dated 08.10.2020 in Crl.P. No. 4614 of 2020 by misrepresenting that accused Nos. 2 to 4 were arrested and were released on bail. The respondent herein has obtained bail vide order dated 08.10.2020 in Crl.P. No. 4614 of 2020 by misrepresenting that accused Nos. 2 to 4 were arrested and were released on bail. In fact, accused Nos. 2 to 4 were arrested and sent to judicial remand and their bail applications were dismissed by the Sessions Court vide orders dated 17.10.2020 and 19.10.2020 respectively. It is relevant to point out that the allegation against the respondent - accused No. 1 and other accused is that they have involved in transportation of Narcotic Drug, a prohibited item, and hashish oil, total 31 tiny plastic boxes, each box containing about 5 grams of hashish oil was found in possession of all the accused. Thus, the said facts would reveal that the respondent - accused No. 1 has obtained the bail by misrepresentation of fact. Therefore, the bail granted to him vide order dated 08.10.2020 in Crl.P. No. 4614 of 2020 deserves to be cancelled. 18. Accordingly, the present Criminal petition is allowed cancelling the bail order granted to the respondent - accused No. 1 vide order 08.10.2020 passed by this Court in Crl. P. No. 4614 of 2020. The respondent - accused No. 1 is directed to surrender before the Sessions Court within fifteen (15) days from today. He is at liberty to move an application for grant of regular bail and the same shall be considered by the Sessions Court on merits. If the respondent-accused No. 1 fails to surrender before the Court, the Sessions Court shall take necessary steps for committing the respondent. As a sequel, miscellaneous petition, if any, pending in the Criminal Petition shall stand closed.