Sunil Sadath vs State Of Kerala
2021 Latest Caselaw 12607 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE ASHOK MENON
      FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
                   BAIL APPL. NO. 6892 OF 2020
    CRIME NO.464/2020 OF Valanchery Police Station, Malappuram
PETITIONER/S:

            SUNIL SADATH
0




            AGED 46 YEARS
            ORAVANKUNNATH HOUSE, THEKKUMURI P.O,
            KARALMANNA, PALAKKAD DISTRICT-679506, PIN - 679506

            BY ADVS.
            B.PREMOD
            SRI.P.VIJAYA BHANU (SR.)
            SMT.POOJA PANKAJ



RESPONDENT/S:

STATE OF KERALA

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, VALANCHERRY, MALAPPURAM.

ERNAKULAM, PIN - 676552

BY ADV PUBLIC PROSECUTOR SMT.V.SREEJA

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.03.2021, ALONG WITH Bail Appl..7073/2020, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:

BA Nos.6892 & 7073/2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943 BAIL APPL. NO. 7073 OF 2020 CRIME NO.484/2020 OF Valanchery Police Station, Malappuram PETITIONER/S:

SUNIL SADATH

AGED 46 YEARS ORAVANKUNNATH HOUSE, THEKKUMURI P.O, KARALMANNA, PALAKKAD DISTRICT-679506.,

BY ADVS.

B.PREMOD SRI.P.VIJAYA BHANU (SR.) SRI.B.PRAMOD SMT.POOJA PANKAJ

RESPONDENT/S:

STATE OF KERALA

REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALATHROUGH THE CIRCLE INSPECTOR OF POLICE, VALANCHERRY, MALAPPURAM-676552.

ERNAKULAM, PIN - 676552

BY ADV PUBLIC PROSECUTOR SMT.V.SREEJA

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.03.2021, ALONG WITH Bail Appl..6892/2020, THE COURT ON 28.05.2021 DELIVERED THE FOLLOWING:

BA Nos.6892 & 7073/2020

COMMON ORDER

Dated, this the 28th day of May, 2021 [BA.No.6892 of 2020 and BA No. 7073 of 2020]

Applications for anticipatory bail under section 438 Cr.PC.

2. The applicant had preferred these two applications

seeking anticipatory bail apprehending imminent arrest in two

Crimes, Nos. 464/2020 and 484/2020 of the Valanchery

Police Station, against him and two others, alleging

commission of offences punishable under Sections 465, 468,

471 & 420 of the IPC. The crimes were originally registered

against the applicant alone and later, the staff of the applicant

including his son, working in his laboratory named Arma Lab

and Health, Valanchery have been arrayed as co-accused. BA Nos.6892 & 7073/2020

3. The prosecution case in Crime 464/20, in brief, is

that Micro Health Laboratories, Kozhikode ('Micro Lab' for

short), is a laboratory authorised by the Government and

recognized by the ICMR, to conduct tests for detecting

COVID-19. Applicant is the proprietor of Arma Lab and Health,

Valanchery ('Arma Lab' for short). The applicant's Arma Lab

was made a sample collecting agent at Valancheri for the Micro

Lab. Samples collected by the applicant were forwarded for

testing to Micro Lab and reports were issued by them. The

Public Relations Director of Micro Lab filed a complaint before

the police on 16-09-2020, stating that the applicant and the

co-accused had between the period 15/07/20 and 15/09/20

dishonestly induced the members of the public who required a BA Nos.6892 & 7073/2020

test report to travel abroad, to deliver samples for testing, and

also collected money from them. Those samples were never

sent to Micro Lab for testing and the accused issued fake

certificates under the name of Micro Lab, without actually

conducting any tests, and thereby forged Lab reports for the

purpose of cheating the members of the public who had

approached them, and also the Micro Lab in whose name the

forged reports were issued. Consequently, the Crime was

registered.

4. The allegation in Crime 484/20, is that the applicant

had similarly collected samples for COVID-19 tests from

persons, as the collecting agent of R-CELL Diagnostic and

Research Centre, ( 'R-CELL' for short) Kozhikode, yet another BA Nos.6892 & 7073/2020

authorised Lab, and after having collected samples and taken

money, issued fake reports in the name of R-CELL. A

complaint was filed by Russel Mohammed, the Managing

Partner of R-CELL, stating that the applicant had on

03/09/2020, collected sample of a person named Haneefa

Pottammal Mohammed, and send the said sample together

with other samples to R-CELL for examination. The said

person had tested positive for COVID-19, and as required, the

information was communicated to the DMO and DSO, and the

information was also uploaded to the State Government Portal.

But when the authorities contacted the infected person

Haneefa, he informed them that the applicant has issued a

negative report to him. The applicant had in fact issued a fake BA Nos.6892 & 7073/2020

negative report. The complainant states that the applicant has

issued several such forged and fake reports. In consequence

of this complaint, Crime 484/2020 was also registered against

the applicant and others for similar offences as alleged in the

earlier Crime.

5. All the co-accused except the applicant were

arrested. They were subsequently released on regular bail. The

applicant apprehends that he too may be arrested, and hence,

he has approached this court for pre-arrest bail, after his

applications were dismissed by the Sessions Court.

6. The applicant's version is that he is innocent, and

has not committed any forgery as alleged. It is stated that the

applicant's Lab has a very good reputation, and has been BA Nos.6892 & 7073/2020

functioning for the last 25 years. There has been no

complaints about his Lab, so far. On 13/09/2020, a person

named Abdul Azeez Poyyakodi, employed in Dubai, wanted to

get a RTPCR test for detecting COVID-19 conducted, as he was

travelling to Dubai on 16/09/2020. The sample provided by

him was forwarded to Micro Lab for examination. On

14/09/2020, Micro Lab forwarded an report stating that no

SARS-CoV-2 was detected in the sample provided. That report

was sent to Abdul Azeez, and he made preparations to travel

on the 16/09/2020. However, the applicant's Lab yet received

another report from Micro Lab stating that Azeez has been

tested positive. That report was also forwarded to Azeez by the

person in charge of the Lab. The health authorities had been BA Nos.6892 & 7073/2020

intimated, and hence they directed Azeez to go on quarantine,

and prevented him from travelling. Abdul Azeez felt that there

was something wrong with the report, as he was

asymptomatic, and hence got himself tested at Valluvanad

Hospital, Ottapalam, on 16/09/2020. He was found to be

negative for COVID-19, vide Annexure 2 report. Azeez made a

complaint before the authorities against Micro Lab. He alleged

that there was negligence on their part and hence he was

prevented from going abroad, due to the false positive report

issued by them. Anticipating that he may proceed against

them, Micro Lab filed the complaint against the applicant.

7. With regard to the complaint filed by R-CELL, the

applicant states that the person named Haneefa Pottammal BA Nos.6892 & 7073/2020

Mohammed approached the applicant's lab on 04/09/2020 for

getting an RTPCR test to rule out SARS-CoV-2. The sample

collected at the applicant's lab was forwarded to R-CELL. By

the end of the day, the result came, confirming that the test for

SARS-CoV-2 was positive. Annexure 2 report was forwarded to

Haneefa. Suspecting the authenticity of the test, he

approached the applicant's lab again, on 05/09/2020,

requesting the sample to be taken again repeating the test, as

he was asymptomatic. His sample was taken and this time sent

to Micro Lab. Annexure 3 report from the Micro Lab stated that

the test for SARS-CoV-2 was negative. But in the meantime, R-

CELL had already intimated the health authorities about the

test result being positive, and Haneefa was asked to go on BA Nos.6892 & 7073/2020

quarantine. Haneefa also made a complaint against R-CELL

about his report going wrong. The complaint filed by Russel

Mohammed as Annexure 4 on behalf of R-CELL was filed only

on 27/09/2020, with ulterior motive to prevent action being

take against them for the false report issued by them.

8. Heard the Senior Counsel Sri. P. Vijayabhanu

appearing for the applicant under instructions of Adv.

B.Premod. Smt. V.Sreeja, the Public Prosecutor, appeared for

the State. Records and Case Diary perused. The investigating

officer also filed a report.

9. The learned prosecutor submits that the applicant is

the person who runs the Lab, and all manipulations are made

by him. The lab technicians working as apprentices have given BA Nos.6892 & 7073/2020

statement to the effect that the applicant was personally

responsible in taking the samples collected at the Lab for

being transmitted to Micro Lab. They have stated that only a

portion of the samples were sent. But they do not know what

was done with the samples not sent to Kozhikode. The report

of the investigating officer states that the applicant had

collected more than 2000 samples, but sent only about 500 of

them for testing by the Labs at Kozhikode. This is a strong

indication that the applicant was manipulating reports by using

the names of the accredited Labs. The report has confirmed

the validity of the negative report received from Valluvanad

Hospital.

10. On hearing the submissions made by the learned BA Nos.6892 & 7073/2020

Senior Counsel Sri. P Vijayabhanu, and the learned prosecutor

Smt. Sreeja, and on going through the case diary, I find that

there is indication about the complicity of the applicant. But as

regards the individual cases involving the tests of Azeez and

Haneefa, the complicity of the accused is not so far

established. The staff of the applicant have given statements

raising doubts about the manner in which the applicant's lab

was functioning. The staff engaged by the applicant as

apprentices have noticed that the applicant never used to sent

the entire samples collected in his lab for RTPCR test to the

labs at Kozhikode. What did he then do with those samples he

did not send to the authorised Labs? This question will have to

be clarified by the applicant.

BA Nos.6892 & 7073/2020

11. Considering the fact that the offences alleged

against the applicant does not attract punishment exceeding

seven years imprisonment, caution will have to taken while

arresting the applicant. The present pandemic situation also

requires that an accused involved in offences attracting

imprisonment only upto seven years, need not be arrested and

confined to custody unless it is essential and imperative to do

so. The Hon'ble Apex Court has in In Re: Contagion of Covid

19 Virus In Prisons ... Petitioner(s) [2021 SCC OnLine SC 376]

observed thus:

"9. As a first measure, this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this BA Nos.6892 & 7073/2020

Court in Arnesh Kumar v. State of Bihar (supra) during pandemic."

In Arnesh Kumar v. State of Bihar [2014(3) KHC 69 : 2014(8)

SCC 273], the Apex Court has held thus:

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 11.2. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified subclauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, BA Nos.6892 & 7073/2020

while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished BA Nos.6892 & 7073/2020

for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

12. The materials collected so for by the investigating

officer do indicate the complicity of the applicant. The

accusation is also grave and affects the public health. But

taking note of the present pandemic situation, and the need to

de-congest the prisons, I find that the applicant need not be BA Nos.6892 & 7073/2020

subjected to custodial interrogation. He has no criminal

antecedents, and has not been involved in any similar offences.

The possibility of his absconding and fleeing from justice is

also to be ruled out. The learned prosecutor submits that the

applicant could not be arrested so far because he was on the

run. The investigating officer has no case that he was issued

notice under section 41A Cr.P.C, and that he did not appear

despite being served with such notice. Considering all these

facts and circumstances, It would suffice if he is directed to

appear before the investigating officer for interrogation and

cooperate with the investigation, which mainly depends on

documentary evidence. The applicant need not be incarcerated

merely to give him a taste of imprisonment. BA Nos.6892 & 7073/2020

13. The applications are allowed and the applicant is

directed to surrender before the investigating officer within

one month, and after interrogation and recovery if any, he

shall be released on bail on execution of bond for

Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties

for like amount each to the satisfaction of the arresting officer,

in each of the cases, subject to the following conditions:

1. He shall appear before the investigating officer on all

Saturdays between 9:00A.M and 12:00 noon for a period

of three months.

2. He shall surrender his passport before the jurisdictional

Court within a week after his release on bail, and the

same shall be released to applicant by the jurisdictional/ BA Nos.6892 & 7073/2020

trial court, as and when found necessary, on such

conditions as may be imposed by that court. In case he

does not have a passport, an affidavit to that effect shall

be filed before the jurisdictional court.

3. He shall not tamper with evidence, intimidate or influence

witnesses.

4. He shall not get involved in any similar crimes during the

currency of the bail.

The breach of the bail conditions shall entail in cancellation of

bail, on an application filed by the prosecution before the

jurisdictional court. Sd/-

ASHOK MENON JUDGE jg