The Applicant was arrested on 02.09.2020 for the commission of the offence under Section 49(d) of MP Excise Act and therefore he applied for grant of bail under Sec 439 of Cr. P.C
Brief Facts
The Applicant possessed 5 litres of country-made liquor which lead to his arrest and he was subsequently detained under judicial custody since 02.09.2020. Testing of such seized liquor was sent to the Forensic Science Laboratory(FSL) on 05.10.2020, whose result was awaited till date to ascertain whether the substance was suitable for human consumption or not.
Petitioner’s Arguments
The Counsel argued that since the FSL report was not received for determining the suitability of the liquor for human consumption, it could be reasonably apprehended that such report would lengthen the time for the trial. Moreover, it was impossible that the applicant would tamper the evidence or threaten the witness of the Prosecution. Therefore, the Counsel argued that on such firm grounds, the Applicant must be entitled to bail application under Sec 439 of Cr. P.C
Respondent’s Arguments
The Respondent’s Counsel argued that as provided in the memo of arrest, the Applicant was a habitual criminal but such criminal background or history was unknown as it was sent along with a police case diary.
Court’s Observations
This court observed the relevance of the Supreme Court case In Re: Contagion Of Covid 19 Viruses In Prisons In Suo Motu W.p. (C) No. 1/2020 in which Apex Court instructed all states to constitute High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary by whatever designation (iii) Director General of Prisons, to determine which class of prisoners were to be released on parole or interim bail to vacate prisons in the context of COVID-19.
Such release of prisoners depended upon the severity of the offence, the number of years of imprisonment, nature of the offence or any other factors which the committee deemed appropriate. The Supreme Court directed that Union of India should ensure that all prisoners released by state/union territory through Directors General of Police were to be properly and conveniently transited to their home town or given the option of staying in a temporary shelter home during the lock down period. The Union of India could take any appropriate actions under the Disaster Management Act, 2005 or any other law in force to give effect to such instances.
It is the essence of Article 21 that every individual including prisoners had the right to live with dignity and recollect the ingredient essential for his survival which, in the present circumstances was the de-congestion of prisons to avoid and control the spread of COVID-19 virus.
The Applicant was to necessarily follow all instructions given by the Central/State Government(s) or Local Administration to control and prevent the spread of COVID-19.
The Applicant was also required to furnish the copy of the bail to the police station having jurisdiction over such region. Upon the failure to comply with any of the instructions issued by the competent authority, Local Administration or Police Authority was entitled to take him into custody and would send him to the same jail from which he was released earlier. Upon Violation of the above conditions or other conditions provided under Sec 437, 439 of Cr. P.C, the order would automatically lose its effect.
Court’s Decision
The set of instructions/order would remain in operation as long as the receipt of FSL report was received and if the FSL report confirmed that the liquor was unfit for human consumption then such orders would automatically cease to exist and the Applicant was to surrender himself before the trial court. On the other hand, if the report stated that the liquor was fit for human consumption that such orders were to remain in force till the disposal of the case.
The Court decided that the Applicant was to be released on bail by furnishing a personal bond of Rs.1,00,000 to the satisfaction of the Trial Court or C.J.M. or Remand Magistrate along with undertaking that he would comply with instructions issued by Central/State Government or Local Administration from time to time. The Applicant was also required to furnish one surety of the same amount to trial court within one month after the lock down was lifted.
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