Madras High Court
Sankar vs The State Rep. By on 2 March, 2023
Crl.O.P.(MD).No. 3938 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.03.2023
CORAM:
THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA
Crl.O.P.(MD).No.3938 of 2023
Sankar ...Petitioner/Petitioner
Vs.
The State Rep. by
The Inspector of Police,
Pappanadu Police Station,
Thanjavur District.
Crime No.107 of 2023 ...Respondent/Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Cr.P.C., to set
aside the order passed in Cr.M.P.No.1152 of 2023, dated 24.02.2023 on the file of
the learned Principal Sessions Judge, Thanjavur and modify the condition imposed
by the learned Principal Sessions Judge, Thanjavur in Cr.M.P.No.923 of 2023, dated
15.02.2023, in sofar as the condition that the petitioner to pay a sum of Rs.75,000/-
which is non-refundable to the credit of the “Chief Educational Officer, Thanjavur
Development Fund, Account No.05350100020509” of Bank of Baroda, Thanjavur.
For Petitioner : Mr.R.Ponkarthikeyan
For Respondent : Mr.A.Albert James
Government Advocate (Crl. side)
1/10
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
ORDER
This Criminal Original Petition has been filed to to set aside the order
passed in Cr.M.P.No.1152 of 2023, dated 24.02.2023 on the file of the learned
Principal Sessions Judge, Thanjavur and modify the condition imposed by the
learned Principal Sessions Judge, Thanjavur in Cr.M.P.No.923 of 2023, dated
15.02.2023, in sofar as the condition that the petitioner to pay a sum of Rs.75,000/-
which is non-refundable to the credit of the “Chief Educational Officer, Thanjavur
Development Fund, Account No.05350100020509” of Bank of Baroda, Thanjavur.
2.The case of the prosecution is that the petitioner was found in illegal
possession of 198 numbers of TASMAC (each containing 180ml) brandy liquor
bottles. Hence, the case.
3.The learned counsel for the petitioner would submit that the petitioner
was arrested in Crime No.107 of 2023 registered by the respondent police for the
offence punishable under Sections 4(1)(a) and 4(1-A) of TNP Act and remanded to
judicial custody on 05.02.2023. He had filed an application for bail in Crl.M.P.No.
923 of 2023 before the learned Principal Sessions Judge, Thanjavur and the learned
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
Sessions Judge had granted bail vide order dated 15.02.2023 on condition that the
petitioner shall deposit Rs.75,000/-, which is non-refundable, to the credit of the
Education Department, by means of Demand Draft to be drawn in any one of the
Nationalized Banks in favour of “The Chief Educational Officer, Thanjavur
(Development Fund) – Account No.05350100020509” of Bank of Baroda,
Thanjavur, IFSC: BARB0TANJOR payable at Thanjavur and produce the original
demand draft before the said office and obtain its proper acknowledgment receipt in
his name with Crl.M.P.No., from the said office and produce the receipt, xerox copy
of Demand Draft along with memo before Jurisdictional Magistrate. He would
further submit that the petitioner is a poor man without any means and he is unable
to raise funds to comply with the condition and thereby, the petitioner had filed a
petition in Crl.M.P.No.1152 of 2023 before the same Judge seeking for modification
of the said condition and the same was dismissed on 24.02.2023. He would further
submit that though the petitioner was granted bail as early as on 15.02.2023, due to
his inability, he is unable to raise funds and languishing in jail which would
sufficiently indicate that he is not able to make out money. He would further submit
that the Hon'ble Apex Court as well as this Court had time and again held that
excessive conditions cannot be imposed while granting bail/suspension of sentence,
conditions of bail cannot be so onerous that their existence itself tantamounts to
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
refusal of bail. He would further submit that keeping the appellant in jail that too in
a case where he normally would have been granted bail for the alleged offences, is
not just a symptom of injustice, but injustice itself. The learned counsel would
further rely on the Judgment of the Hon'ble Apex Court reported in 2023 Live Law
(SC) 45 in the case of Guddan @ Roop Narayan Vs. State of Rajasthan. The
following paragraphs are extracted hereunder:-
“...12. Further, in the case of Sandeep Jain Vs. National Capital
Territory of Delhi (2000) 2 SCC 66, this Court, while hearing a bail
application held that conditions for grant of bail cannot become so onerous
that their existence itself is tantamount to refusal of bail. This Court held as
under:
“We are unable to appreciate even the first order passed
by the Metropolitan Magistrate imposing the onerous condition that
an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to
be set at liberty. If he had paid it is a different matter. But the fact
that he was not able to pay that amount and in default thereof he is to
languish in jail for more than 10 months now, is sufficient indication
that he was unable to make up the amount. Can he be detained in
custody endlessly for his inability to pay the amount in the range of
Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the
Court could perhaps have taken it as a ground to suggest to the
payee of the cheques to resort to the legal remedies provided by law.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
Similarly if the Court was dissatisfied with the conduct of the surety
as for his failure to raise funds for honouring the cheques issued by
him, the Court could have directed the appellant to substitute him
with another surety. But to keep him in prison for such a long period,
that too in a case where bail would normally be granted for the
offences alleged, is not only hard but improper. It must be
remembered that the Court has not even come to the conclusion that
the allegations made in the FIR are true. That can be decided only
when the trial concludes, if the case is charge-sheeted by the police.”
13. In the present case, the Appellant has been granted bail by the
High Court. However, while granting bail, the High Court has imposed the
excessive conditions of a deposit of fine amount of Rs.1,00,000/- along with a
surety of another Rs.1,00,000/- and two further bail bonds of Rs.50,000/-
each.
14. We are unable to appreciate the excessive conditions of bail
imposed by the High Court. The fact that bail has been granted to the
Appellant herein is proof enough to show that he is not to be languishing in
jail during the pendency of the case.
15. While bail has been granted to the Appellant, the excessive
conditions imposed have, in-fact, in practical manifestation, acted as a refusal
to the grant of bail. If the Appellant had paid the required amount, it would
have been a different matter. However, the fact that the Appellant was not
able to pay the amount, and in default thereof is still languishing in jail, is
sufficient indication that he was not able to make up the amount.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
16.As has been stated in the Sandeep Jain case (supra), the
conditions of bail cannot be so onerous that their existence itself tantamounts
to refusal of bail. In the present case, however, the excessive conditions herein
have precisely become that, an antithesis to the grant of bail.
17. Any other accused in a similar circumstance at this point would
not be in custody, however, the present Appellant, because of the conditions
imposed, has not been able to leave the languish of jail. Can the Appellant, for
not being able to comply with the excessive requirements, be detained in
custody endlessly? To keep the Appellant in jail, that too in a case where he
normally would have been granted bail for the alleged offences, is not just a
symptom of injustice, but injustice itself.”
4.In support of his contention, the learned counsel for the petitioner would
also rely on the Judgment of the Hon'ble Apex Court in Subhash Chouhan Vs.
Union of India and Another reported in 2023 Livelaw (SC) 61, wherein, it has
been held that the onerous condition directing the petitioner to deposit money
cannot be imposed while granting of bail. Hence, he would seek to modify the above
said condition. He would further submit that the petitioner, without prejudice to his
defence, is ready and willing to deposit a sum of Rs.10,000/- in compliance of the
said condition.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
5.The learned Government Advocate (Crl. side) would submit that the
petitioner was found in illegal possession of 198 numbers of TASMAC (each
containing 180ml) brandy liquor bottles and the learned Principal Sessions Judge
has rightly imposed the condition on the petitioner and thereby, he would oppose for
allowing this petition.
6.Heard. Perused the materials available on record.
7.This Court is of the opinion that the condition No.1 imposed in
Crl.M.P.No.923 of 2023 by the learned Principal Sessions Judge, Thanjavur, dated
15.02.2023 is onerous and excessive.
8.In view of the above, the order passed by the learned Principal Sessions
Judge, Thanjavur in Crl.M.P.No.1152 of 2023, 24.02.2023 is set aside and this
Criminal Original Petition is allowed. Further, in view of the voluntary submission
made by the counsel that the petitioner is ready and willing to deposit Rs.10,000/-
(Rupees Ten Thousand Only), the condition No.1 imposed in Crl.M.P.No.923 of
2023, dated 15.02.2023 shall stands modified to the effect that the “the petitioner is
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
directed to deposit Rs.10,000/- (Rupees Ten Thousand Only), which is non-
refundable, to the credit of the Education Department, by means of Demand Draft
to be drawn in any one of the Nationalized Banks in favour of “The Chief
Educational Officer, Thanjavur (Development Fund) – Account No.
05350100020509” of Bank of Baroda, Thanjavur, IFSC: BARB0TANJOR payable
at Thanjavur and produce the original demand draft before the said office and
obtain its proper acknowledgment receipt in his name with Crl.M.P.No., from the
said office and produce the receipt, xerox copy of Demand Draft along with memo
before Jurisdictional Magistrate”. All other condition in the said order dated
15.02.2023 shall remain unaltered.
02.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
Note: Issue order copy on 02.03.2023.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
To
1.The Principal Sessions Judge, Thanjavur.
2.The Inspector of Police,
Pappanadu Police Station,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No. 3938 of 2023
A.D. JAGADISH CHANDIRA, J.
sji
Crl.O.P.(MD).No.3938 of 2023
02.03.2023
https://www.mhc.tn.gov.in/judis
