Kerala High Court
Hashim vs The State Of Kerala on 5 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:39486
CRL.MC NO. 4737 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.MC NO. 4737 OF 2025
CRIME NO.42/2018 OF PATHANAMTHITTA E.E, PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT IN CRMP NO.219 OF 2025 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
PATHANAMTHITTA / II ADDL.M.A.C.T. ARISING OUT OF THE
ORDER/JUDGMENT DATED IN SC NO.476 OF 2022 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA / II
ADDL.M.A.C.T.
PETITIONER:
HASHIM
AGED 29 YEARS
S/O PICHAKANI
KORATTIMUKKU MURI VALANCHUZHY
PATHANANMTHITTA DISTRICT,
PIN - 689645
BY ADVS.
SRI.S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
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CRL.MC NO. 4737 OF 2025
2
2 THE EXCISE CIRCLE INSPECTOR
EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD,
PATHANAMTHITTA,
PIN - 689645
BY SRI. SANAL. P. RAJ, PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.06.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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3
ORDER
Petitioner is the accused in Crime No.42 of 2018
registered by the Excise Enforcement and Anti Narcotic Special
Squad, Pathanamthitta for the offence punishable under Section
20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances
Act, 1985, now pending as S.C.No.476 of 2022 on the files of the
Additional Sessions Court-II, Pathanamthitta. The crime was
registered on the allegation that the petitioner was found in
possession of 1.100 kgs of ganja. He was arrested on 22.12.2018
and released on bail vide Annexure-B order dated 27.02.2019.
As per condition (e) of Annexure-B order, the petitioner was
restrained from getting involved in offences of like nature in
future. Alleging that the petitioner had violated the said
condition by getting involved in Crime No.43 of 2023 of the
Pathanamthitta Police Station registered for offences punishable
under Sections 20(b)(ii)B and 29 of the Narcotic Drugs and
Psychotropic Substances Act, the prosecution moved an
application for cancellation of petitioner's bail, which the learned
Sessions Judge allowed as per Annexure -D order. Hence, this
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Crl.M.C.
2. Learned counsel for the petitioner contends that
violation of the bail condition cannot, by itself, result in
cancellation of bail. Referring to Annexure D order, it is
submitted that the learned Sessions Judge passed the impugned
order without considering the legal contentions urged on behalf
of the petitioner. Reliance is placed on the decision in Abdul
Lathif @ Shokkari Lathif v. State of Kerala [2023 KHC OnLine
112] to point out that, under identical circumstances, this Court
had quashed the order and directed re-consideration of the
application for cancellation of bail.
3. Learned Public Prosecutor points out that the
petitioner is a hardened criminal and was involved in a similar
offence in 2016 also. By his involvement in the subsequent
crime and violation of the bail condition, the petitioner has
misused the liberty granted to him. The court below was
therefore justified in cancelling his bail.
4. In reply, learned counsel for the petitioner
clarified that her client was acquitted in the 2016 crime.
5. The legal position that consideration for grant of
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bail and its cancellation are entirely different, and bail once
granted can be cancelled only for cogent reasons, needs no
reiteration in view of the law declared by the Apex Court through
various decisions, including Dolat Ram and Others v. State of
Haryana [(1995) 1 SCC 349]. Bail once granted can normally
be cancelled only if there is an interference or attempt to
interfere with the due course of justice, abuse of the concession
of bail or when the bail order is found to be perverse and based
on irrelevant considerations.
6. Even though in P. v. State of Madhya Pradesh
(2022 KHC 6496) misuse of liberty by the accused indulging in
similar/other criminal activity is enumerated as one of the
circumstances justifying cancellation of bail, the court below is
bound to make a preliminary enquiry as to the truth or
otherwise of the allegations in the subsequent crime. The legal
position in this regard is laid down by this Court in XI, Victim
SC No.211 of 2018 of POCSO Court (2019 (3) KHC 26), the
relevant portion of which is extracted below;
" 9. But in a case where the victim or the witnesses
specifically complains of threat and intimidation and the said
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aspects are projected either by victim or by the prosecution
before the Bail Court through an application as referred to in
Ext.P-5, then it is bounden duty of the Bail Court to consider
the correctness or otherwise of the allegations in a summary
manner after affording an opportunity of being heard to the
prosecution as well as to the affected accused concerned
whose bail is ought to be cancelled and if possible to the
victim as well, in a case like this. In such process of enquiry,
the Bail Court could call for the records if any in relation to
those allegations and if a separate crime has been registered
in that regard, the records in those crimes should also be
perused by the Bail Court in order to make an enquiry in a
summary manner as to the truth or otherwise of the
allegations therein, and after affording reasonable
opportunity of being heard to the prosecution, accused and
the victim, the Bail Court is expected to discharge its solemn
duty and function to decide on the correctness or otherwise of
the allegations in such a summary manner and the
evidentiary assessment thereof could be on the basis of the
overall attendant circumstances as well as the attendant
balance of probabilities of the case. Based on such a process,
the bail court is obliged to take a decision whether the Bail
conditions have been so violated and if it is so found that the
bail conditions has been violated then it is the duty of the Bail
Court to cancel the bail, but certainly after hearing the
affected party as aforestated. So also, if the said enquiry
process reveals that the truth of the abovesaid allegations
has not been established in a convincing manner in such
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enquiry process, then the Bail Court is to dismiss the
application to cancel the bail. But the Bail Court cannot evade
from the responsibility by taking up the specious plea that
since the very same allegations also form subject matter of a
distinct crime then the truth or otherwise of the allegations is
to be decided by the criminal court which is seisin of that
crime through the process of finalisation of said impugned
criminal proceedings by the conduct and completion of trial
therein."
7. This Court in Abdul Latheef (supra) has held
that even in a case where the accused has committed a crime
while on bail, the court has to consider whether the crime is of
such a grave nature that it amounts to a supervening
circumstance warranting cancellation of bail. For that, there
must be a preliminary assessment of the allegations with respect
to the subsequent crime. In the instant case, the learned
Sessions Judge did not enter into such an exercise, but
proceeded to cancel the bail on finding the bail condition to have
been violated, as revealed from the following observation in the
penultimate paragraph of Annexure D order extracted
hereunder;
"It is not the question whether the violation of the condition
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affected the trial of the present case. It cannot be disputed
that the accused has not violated the condition imposed for
granting bail for him in this case."
8. On that short ground, the Crl.M.C. is allowed
and the impugned order set aside. The Additional Sessions
Court-II is directed to reconsider Crl.M.P. No. 219 of 2025 in
S.C. No. 476 of 2022 and pass a fresh reasoned order, as
expeditiously as possible, taking into account the observations
herein. The impugned order having been set aside, the petitioner
has to be enlarged on bail. However, in view of petitioner's
involvement in the second crime, the bail bond is to be
increased. Accordingly, the following direction is issued;
The petitioner shall be enlarged on bail on executing a
personal bond for Rs.1,00,000/- (Rupees One Lakh only), in
addition to the bond already executed in compliance of the
conditions in Annexure B order granting bail.
Sd/-
V.G.ARUN
JUDGE
SPV
2025:KER:39486
CRL.MC NO. 4737 OF 2025
PETITIONER ANNEXURES
ANNEXURE -A TRUE COPY OF THE CRIME AND OCCURRENCE
REPORT IN CRIME NO.42/2018 OF EXCISE
ENFORCEMENT AND ANTI NARCOTIC SPECIAL
SQUAD, PATHANAMTHITTA
ANNEXURE -B TRUE COPY OF THE ORDER DATED 27/02/2019
IN CRL.M.P.NO.1060/2019 OF THE HON'BLE
COURT OF SESSIONS JUDGE, PATHANAMTHITTA
ANNEXURE -C TRUE COPY OF THE FIR IN CRIME NO.43/2025
OF PATHANAMTHITTA POLICE STATION,
PATHANAMTHITTA
ANNEXURE -D CERTIFIED COPY OF THE ORDER DATED
03/03/2025 IN CRL.M.P NO.219/2025 IN S.C
NO.476/2022 OF THE COURT OF ADDITIONAL
SESSIONS COURT-II, PATHANAMTHITTA
RESPONDENTS' ANNEXURES: NIL
//TRUE COPY//
PA TO JUDGE
