Muhammad Rafiq vs State Rep By Its
2023 Latest Caselaw 3208 Mad

                                                                                   Crl.O.P.No.6273 of 2023

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 27.03.2023

                                                            CORAM:

                                  THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                  Crl.O.P.No.6273 of 2023

                     1.Muhammad Rafiq
                     2.Manikandan                                                    Petitioners

                                                               Vs.

                     State rep by its
                     The Inspector of Police,
                     Katpadi Police Station,
                     Vellore District.
                     Crime No.404 of 2022                                             Respondent


                     PRAYER: Criminal Original Petition filed under Section 439(1)(b) of the
                     Code of Criminal Procedure, to modify the condition imposed on the
                     petitioners “1.The petitioners/accused should execute a bond for a sum of
                     Rs.20,000/- with two sureties each like sum to the satisfaction of the learned
                     Judicial Magistrate No.I, Salem and the sureties should be close relatives
                     and they should produce necessary documents to own valuable property” in
                     Crl.MP.No.275 of 2023 order dated 24.02.2023 on the file of Special Judge
                     for EC/NDPS Act Cases, Salem.

                                      For Petitioners      : Mr.S.Selvakumar for
                                                             Mr.W.Camyles Gandhi

                                                                                                        1

https://www.mhc.tn.gov.in/judis
                                                                                   Crl.O.P.No.6273 of 2023



                                        For Respondent     : Mr.N.S.Suganthan
                                                             Government Advocate (crl.side)


                                                           ORDER

This Criminal Original Petition is filed to modify the condition No.1

imposed in Crl.M.P.No.275 of 2023 dated 24.02.2023 on the file of the

Special Judge for EC/NDPS Act Cases, Salem.

2. One of the conditions imposed by the Special Judge for EC/NDPS

Act Cases, Salem while granting bail to the petitioners in a case of alleged

possession of 4.1 kg of Ganja, to the effect that the petitioners shall execute

a bond for a sum of Rs.20,000/- with two sureties each for a like sum and

the sureties should be close relatives and they should produce necessary

documents for owning a valuable property, is challenged by the petitioners

on the ground that it is onerous.

3. Mr.S.Selvakumar representing Mr.Camyles Gandhi, learned

counsel for the petitioners would submit that the petitioners were arrested in

Cr.No.404 of 2022 on 22.11.2022 for having been found in possession of

4.1 kgs of ganja and the Special Judge for EC/NDPS Act Cases, Salem has

rightly considered the fact that the petitioners had been in judicial custody

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for more than the statutory period of bail and granted default bail to them,

however, had imposed an onerous condition insisting for execution of bond

for a huge sum with two sureties, who shall produce documents for

possession of valuable property. He would further submit that the

petitioners have no relative with such a financial background, as a

consequence, despite the fact that the default bail was granted on 24.2.2023,

their personal liberty guaranteed by statute has been refused and they are

still languishing in jail and thereby the indefeasible right accrued to the

petitioners has been frustrated.

4. The learned counsel for the petitioners would further submit that

the condition imposed by the learned Trial Judge while releasing the

petitioners on statutory bail/default bail under Section 167(2) of Cr.P.C is

contrary to the scheme of Section 167 Cr.P.C. He would also submit that

the Apex Court and this Court have time and again observed that the

scheme of Code of Criminal Procedure delineates that provisions of Section

167 Cr.P.C., give due regard to the personal liberty of a person and when

the charge sheet has not been submitted within 60 days or 90 days, an

accused cannot be detained by the police and the right in which accused

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

becomes entitled to default bail and it cannot be frustrated either by the

prosecution or the Court.

5. The learned counsel for the petitioners would further submit that

when a court feels that a prima facie has been made out for the purpose of

granting bail, by no stretch of imagination, any onerous condition be passed,

thereby thwarting and making the order inexecutable as it amounts to denial

of bail. In support of his contention, the learned counsel for the petitioners

has relied on the following judgments:-

i) Saravanan Vs. State represented by the Inspector of Police (2020) 9 SCC 101.

ii) Sakthivel Vs. Inspector of Police, Belukurichi Police Station, Namakkal District (2015 (2) MWN (Cr.) 438)

iii) Navaneetha Krishnan Vs. Inspector of Police, Natrampalli Police Station Vellore District (2015 (2) MWN (Cr.) 53).

iv) Sundar @ Ashok Vs. Inspector of Police, T-16 Nazarathpet Police Station (Crl.O.P.No.993 of 2017 dated 18.01.2017)

6. Learned Government Advocate (Criminal Side), opposing for grant

of bail, would submit that the learned Trial Judge has rightly imposed the

condition on the petitioners and thereby the petitioners are not entitled for

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any indulgence and the present petition is liable to be dismissed.

7. Heard the learned counsel appearing on either side and perused the

materials placed before this Court.

8. Admittedly, the bail granted to the petitioners is a default bail as

they had been in judicial custody for more than the statutory period of 90

days and charge has not been filed by the respondent police, however, the

court below has imposed such a onerous condition frustrating the purpose of

granting the bail. On this aspect, as rightly pointed out by the learned

counsel for the petitioners, the Apex Court in number of decisions, has held

that imposition of onerous condition while granting default bail is nothing

but denial of bail.

9. In Saravanan Vs. State represented by the Inspector of Police

(2020) 9 SCC 101, a Full Bench of the Apex Court has held as under:-

"9. Having heard the learned counsel for the respective

parties and considering the scheme and the object and

purpose of default bail/statutory bail, we are of the

opinion that the High Court has committed a grave error

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

in imposing condition that the appellant shall deposit a

sum of Rs 8,00,000 while releasing the appellant on

default bail/statutory bail. It appears that the High

Court has imposed such a condition taking into

consideration the fact that earlier at the time of hearing

of the regular bail application, before the learned

Magistrate, the wife of the appellant filed an affidavit

agreeing to deposit Rs 7,00,000. However, as observed

by this Court in catena of decisions and more

particularly in Rakesh Kumar Paul [Rakesh Kumar Paul

v. State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC

(Cri) 401] , where the investigation is not completed

within 60 days or 90 days, as the case may be, and no

charge-sheet is filed by 60th or 90th day, the accused

gets an “indefeasible right” to default bail, and the

accused becomes entitled to default bail once the

accused applies for default bail and furnish bail.

Therefore, the only requirement for getting the default

bail/statutory bail under Section 167(2) CrPC is that the

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accused is in jail for more than 60 or 90 days, as the

case may be, and within 60 or 90 days, as the case may

be, the investigation is not completed and no charge-

sheet is filed by 60th or 90th day and the accused

applies for default bail and is prepared to furnish bail.

No other condition of deposit of the alleged amount

involved can be imposed. Imposing such condition while

releasing the accused on default bail/statutory bail

would frustrate the very object and purpose of default

bail under Section 167(2) CrPC. As observed by this

Court in Rakesh Kumar Paul [Rakesh Kumar Paul v.

State of Assam, (2017) 15 SCC 67 : (2018) 1 SCC (Cri)

401] and in other decisions, the accused is entitled to

default bail/statutory bail, subject to the eventuality

occurring in Section 167 CrPC, namely, investigation is

not completed within 60 days or 90 days, as the case

may be, and no charge-sheet is filed by 60th or 90th day

and the accused applies for default bail and is prepared

to furnish bail. "

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

10. In Sakthivel Vs. Inspector of Police, Belukurichi Police

Station, Namakkal District (2015 (2) MWN (Cr.) 438) this Court has held

that the bail condition should be executable and it should not be onerous and

oppressive in nature. In Navaneetha Krishnan Vs. Inspector of Police,

Natrampalli Police Station Vellore District (2015 (2) MWN (Cr.) 53), this

Court has observed that the conditions which are in the nature of onerous

and which could not be complied with by the accused, would be like

granting bail by one hand and taking it away by another hand. In Sundar @

Ashok Vs. Inspector of Police, T-16 Nazarathpet Police Station

(Crl.O.P.No.993 of 2017 dated 18.01.2017), this Court has held that Court

cannot expect an accused or surety to be a propertied person.

11. In the case on hand, the Court below had directed the petitioners

to furnish two sureties each and the sureties should be close relatives and

they should produce necessary documents to own a valuable property. It is

the case of the petitioners that they are from the lower strata of the society

and no propertied persons are ready to stand as surety to them. Their

statement about their status cannot be simply brushed aside considering the

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fact that though they were granted bail by the court below on 17.2.2023,

they could not come out on bail even after about about 1-1/2 months, due to

their inability to comply with one of the conditions imposed by the court

below.

12. In such circumstances, in the opinion of this Court, the condition

pointed out by the petitioners, imposed by the lower Court below, is

onerous inviting this court's interference. Accordingly, the said condition

imposed by the court below is modified to the effect that

"The petitioners shall execute a bond for a sum of

Rs.10,000/- with two sureties, each for a like sum to the

satisfaction of the learned Judicial Magistrate No.1,

Salem, one of which must be a close relative."

13. It is made clear that the other conditions imposed by the court

below remain unaltered. The Criminal Original Petition is ordered

accordingly.

27.03.2023

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

Index:Yes/No Internet: Yes/No

drl/ssk.

Note to office:-

Issue copy this order by 3.4.2023.

To

1. Special Judge for EC/NDPS Act Cases, Salem.

2. Judicial Magistrate No.I Salem.

3. The Inspector of Police, Katpadi Police Station, Vellore District.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6273 of 2023

A.D.JAGADISH CHANDIRA.,J.

drl/ssk.

Crl.O.P.No.6273 of 2023

27.03.2023

https://www.mhc.tn.gov.in/judis