Deepam @ Deepak Malaiya vs The State Of Madhya Pradesh
2021 Latest Caselaw 4993 MP

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43436/2021 (DEEPAM @ DEEPAK MALAIYA Vs THE STATE OF MADHYA PRADESH)

Gwalior, Dated : 03-09-2021

Shri Sushil Goswami, Counsel for the applicant through video

conferencing.

Shri A.K. Nirankari, Counsel for the State.

Case diary is available.

This first application under Section 439 of Cr.P.C. has been filed

for grant of bail.

The applicant has been arrested on 25.03.2021 in connection

with Crime No.40/2021 registered at Police Station Dursada, Datia

Distt. Datia for offence under Section 8/20 of NDPS Act.

It is submitted by Counsel for the applicant, that according to

the prosecution case, 14 kg 500 gm of Ganja has been seized from the

joint possession of the applicant and co-accused - Lalji Malaiya. This

Court after considering the act of police in registering the three

criminal cases within a short span of four days, has granted bail to the

co-accused - Lalji Malaiya by order dated 18.08.2021 passed in

M.Cr.C. No.37817/2021. The case of the present applicant is identical

to that of co-accused - Lalji Malaiya. The trial is likely to take

sufficiently long time and there is no possibility of his absconding or

tampering with prosecution case.

Per contra, the application is vehemently opposed by the

Counsel for the State. It is submitted that the applicant has a criminal

history but fairly conceded that the co-accused Lalji Malaiya had also

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43436/2021 (DEEPAM @ DEEPAK MALAIYA Vs THE STATE OF MADHYA PRADESH)

criminal history.

Considered the submissions made by the Counsel for the parties.

The Supreme Court by order dated 23-3-2020 passed in the case

of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in

SUO MOTU W.P. (C) No. 1/2020 has directed all the States to

constitute a High Powered Committee to consider the release of

prisoners in order to decongest the prisons. The Supreme Court has

observed as under :

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID

- 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.

We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43436/2021 (DEEPAM @ DEEPAK MALAIYA Vs THE STATE OF MADHYA PRADESH)

charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

Considering the allegations, as well as considering the fact that

in view of second wave of Covid19 pandemic, it is also necessary to

decongest the jail, and without commenting on the merits of the case, it

is directed that the applicant be released on bail, on furnishing a

personal bond in the sum of Rs.1,00,000/- (Rs. One Lac) with one

surety in the like amount to the satisfaction of the Trial Court or C.J.M.

or Remand Magistrate (Whosoever is available). The applicant shall

also furnish an undertaking that he shall follow all the instructions

which may be issued by the Central Govt./State Govt. or Local

Administration (General or Specific) from time to time for combating

Covid19.

The Supreme Court in the case of IN RE : CONTAGION OF

COVID 19 VIRUS IN PRISONS by order dated 7-4-2020 has

directed as under :

In these circumstances, we consider it appropriate to direct that Union of India shall ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown. For this purpose, the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force. We further direct that the States/Union Territories shall ensure through Directors General of Police to provide safe transit

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43436/2021 (DEEPAM @ DEEPAK MALAIYA Vs THE STATE OF MADHYA PRADESH)

to the prisoners who have been released so that they may reach their homes. They shall also be given an option for staying in temporary shelter homes during the period of lockdown.

Accordingly, it is directed that before releasing the applicant,

the jail authorities shall get the applicant examined by a competent

Doctor and if the Doctor is of the opinion that his Corona Virus

test is necessary, then the same shall be conducted. If the applicant

is not found suspected of Covid19 infection or if his test report is

negative, then the concerned local administration shall make

necessary arrangements for sending the applicant to his house as

per the directions issued by the Supreme Court in the case of IN

RE : CONTAGION OF COVID 19 VIRUS IN PRISONS (Supra),

and if he is found positive then the applicant shall be immediately

sent to concerning hospital for his treatment as per medical norms.

The applicant is further directed to strictly follow all the

instructions which may be issued by the Central Govt./State Govt.

or Local Administration for combating Covid19. If it is found that

the applicant has violated any of the instructions (whether general

or specific) issued by the Central Govt./State Govt. or Local

Administration, then this order shall automatically lose its effect,

and the Local Administration/Police Authorities shall immediately

take him in custody and would send him to the same jail from

where he was released. The applicant is further directed to supply

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43436/2021 (DEEPAM @ DEEPAK MALAIYA Vs THE STATE OF MADHYA PRADESH)

a copy of this bail order to the police station having jurisdiction

over his place of residence.

The other conditions of Section 437, 439 Cr.P.C. shall remain

the same.

This order shall remain in force, till the conclusion of Trial. In

case of bail jump, or violation of any of the condition(s) mentioned

above, this order shall automatically lose its effect.

In the light of the judgment passed by the Supreme Court in the

case of Aparna Bhat & Ors. vs. State of M.P. passed on 18/3/2021

in Criminal Appeal No. 329/2021, the intimation regarding grant of

bail be sent to the complainant.

With aforesaid observations, this application is Allowed.

(G.S. Ahluwalia) Judge Aman AMAN TIWARI 2021.09.03 14:51:59 +05'30'