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CASE NO.: Appeal (crl.) 507-510  of  2001

PETITIONER: MURALEEDHARAN

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       18/04/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellant  who was described by  the  investigating agency  as  one of the kingpins in a series of grave  crimes including  the offence under Section 8 of the Kerala  Abkari Act  (For short the Act) found it easy to secure orders of anticipatory  bail  in  all those cases  from  the  Sessions Judge, Pathanamthitta.  But the High Court of Kerala, within a  month, reversed those orders of the Sessions Judge as per an order passed by a learned Single Judge which is sought to be  impugned in this Court.  These appeals by special  leave are  intended  for  that  purpose.   After  hearing  learned counsel  for the appellant we did not think the necessity to hear  the arguments of the counsel for the respondent  State of  Kerala.  Hence we proceed to dispose of these appeals on the strength of the arguments of the appellant.

   A number of criminal cases were registered sequel to the large  scale  deaths of persons in what is now known as  the liquor tragedy in Kollam District (Kerala).  A larger number of  persons  have  been  permanently  incapacitated  in  the episodes.   Arrested  persons in connection with such  cases remain  in  jails  as  bail has not been  granted  to  them. Appellant  apprehended  that  he would also be  arrested  in connection  with some of those cases, if not in all.  Hence, while  remaining  absconding,  he  approached  the  Sessions Court,  Pattanamthitta, for benefiting him with a pre-arrest bail order.  He got what he desired.  The Sessions Judge who granted  the  order  of  anticipatory bail  found  from  the investigation records that there are reasons to presume that appellant  would  also  be implicated as an accused  in  the case.    The  serious  objections   raised  by  the   Public Prosecutor  in the Sessions Court did not have any impact on the  Sessions  Judge which is discernible from the  flippant reasoning  adopted  by him for granting the pre-arrest  bail order.

   According  to  the Sessions Judge no material could  be

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collected  by  the  investigating   agency  to  connect  the petitioner  with the crime except the confessional statement of  the  co-accused. He also observed that I do not  think that  any prejudice will be caused to the prosecution in the event  of  granting  anticipatory bail especially  when  the petitioner  has not so far been arrayed as an accused in the case.

   It  is  disquieting that a Sessions Judge has chosen  to adopt such inane reasoning for granting anticipatory bail in cases  involving  offences  for which  the  legislature  has imposed  stringent restrictions even in regard to the  grant of regular bail.

   One  of the offences involved is Section 8(2) of the Act which  is punishable with imprisonment for a term which  may extend  to ten years and a fine which shall not be less than Rupees one lakh.  Section 41A of the Act says that no person accused  of an offence punishable for a term of imprisonment for  three years or more shall be released on bail or on his own bond unless:

   (1)  the  Public  Prosecutor or  the  Assistant  Public Prosecutor,   as  the  case  may   be,  has  been  given  an opportunity to oppose the application for such release, and

   (2)  Where the Public Prosecutor or the Assistant public prosecutor,  as the case may be, opposes an application, the court  is  satisfied that there are reasonable  grounds  for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail.

   The  above provision is in pari materia with Section  37 of the Narcotic Drugs and Psychotropic Substances Act.  This Court  has  held,  time  and again, that no  person  who  is involved  in an offence under that Act shall be released  on bail  in  contravention of the conditions laid down  in  the said Section.  (vide Union of India vs.  Ram Samujh and anr. [1999 (9) SCC 429].  If the position is thus in regard to an accused  even  after arrest, it is incomprehensible how  the position  would  be  less when he approaches the  court  for pre-arrest  bail knowing that he would also be implicated as an  accused.   Custodial  interrogation of such  accused  is indispensably  necessary  for  the investigating  agency  to unearth  all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy.   We  express our reprobation at  the  supercilious manner in which the Sessions Judge decided to think that no material  could be collected by the investigating agency  to connect   the   petitioner  with   the  crime   except   the confessional  statement  of the co-accused. Such a  wayward thinking  emanating from a Sessions Judge deserves  judicial condemnation.   No  court  can afford to  presume  that  the investigating  agency would fail to trace out more materials to  prove  the accusation against an accused.  We are  at  a loss  to  understand what would have prompted  the  Sessions Judge   to  conclude,  at  this   early  stage,   that   the investigating  agency  would  not  be able  to  collect  any material to connect the appellant with the crime.  The order of  the  Sessions  Judge,  blessing  the  appellant  with  a pre-arrest  bail order, would have remained as a bugbear  of how  the  discretion  conferred  on  Sessions  Judges  under Section  438  of the Cr.P.C would have been misused.  It  is heartening  that the high Court of Kerala did not allow such an order to remain in force for long.  By the impugned order

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passed  by  the  learned  Single  Judge  of  High  Court  an unwholesome  benefit  wangled by the appellant  was  rightly reversed.

   The appeals are dismissed.