Muhammed Fasil T.K vs State Of Kerala

Shircy V. J

Apprehending arrest in connection with Crime No. 196 of 2021 of Thirunelly Police Station, Wayanad registered for the offences punishable under Sections 3(1) and 25(i)(A) of the Arms Act, these petitioners have moved this application under Section 438 of the Code of Criminal Procedure.

The brief facts required for disposal of this application are as follows:

On 11.07.2021 at about 11 p.m., the petitioners, one Moidu and other accused have trespassed into Tholpetty Wildlife Sanctuary in Tholpetty Range and hunted an Indian Bison by using a fire arm for the purpose of trade of meat and thus committed the aforesaid offences. Moidu, who was arrested, on interrogation disclosed the names of the other accused persons involved in the alleged crime. Thus, the case has been registered against all of them.

The learned counsel for the petitioners would submit that they were falsely implicated in the case by the forest officials though they are fully aware of the fact that they have absolutely no role in the alleged crime and are totally innocent. Though they were not present at the place of occurrence and no arms were recovered from them, they were implicated in the case and so they apprehend unnecessary arrest and incarceration. Therefore, the indulgence of this court is sought for to avoid unnecessary arrest and trauma in connection with the unnecessary detention.

On the other hand, the learned Senior Public Prosecutor opposed the application contending that it is true that Moidu alone was arrested immediately after the incident. The forest officials have found the accused extracting meat from the carcass of the Bison which they have shot dead, but they could not take them into custody as they took to their heels with the weapon and only Moidu alone was apprehended then and there. But certain materials such as a knife, plastic bag, towel etc had been seized from him and postmortem examination of the carcass of the Bison was conducted and a bullet was removed from its body. The petitioners and the other accused have trespassed into the Wildlife Sanctuary area with a gun with the intention to hunt wild animals and thus they have shot dead the Bison with the intention to conduct trade of the meat for unlawful gain. So, the gravity of the offences alleged against these petitioners are grave and serious in nature. Moreover, most of the accused persons are absconding and so, they could not proceed with the investigation of this case and hence, granting of bail is opposed.

The rank of these petitioners who have been arraigned as accused is not definite from the report submitted by the forest officials. The investigating agency could not arrest all the accused persons involved in this case, but, on getting information from Moidu, who alone was apprehended, it was revealed that the petitioners together hunted the wild animal by using a gun. Moreover, postmortem examination would also reveal that gun was used by the petitioners to hunt the wild animal as bullet was recovered from the carcass. They have also used weapons to extract meat from the carcass. From the report, it is further revealed that on getting information from the person who was apprehended, the forest officials have verified the CCTV footage and found the presence of a vehicle bearing No. KL 57 T 6030 and another vehicle owned by Moidu bearing Registration No. KL 12 N 2030 at the spot and it was revealed that the 2nd and 3rd petitioners were brought to the spot for cutting the neck of the animal for halal meat as they could sell the same for a higher price. So, the materials so far collected by the investigating agency would reveal a strong prima facie case against the petitioners. The petitioners are also not from Wayanad District and prima facie, it would indicate that they came to the spot only for the purpose of hunting wild animals with gun and other weapons.

As the investigating agency could not collect the entire materials because they could not arrest all the accused persons involved in the crime, the investigation is going on in a slow phase. Of-course there is a strong prima facie case against these petitioners, but their involvement in hunting the wild animal is less when compared with the active role played by Moidu. They have no criminal antecedents. Therefore, considering the entire facts involved in this case, I think that this application can be disposed of directing them to surrender before the investigating agency and co-operate with the investigation of the case.

So, the petitioners shall surrender before the Investigating Officer on 30.10.2021 between 10 a.m. and 12 noon. Upon their surrender, after interrogation and recovery, if any, and recording their arrest, they shall be released on bail subject to the following conditions:

(i) Petitioners shall execute a bond for a sum of Rs.1,00,000/-(Rupees One Lakh only) each with two solvent sureties for the like sum each to the satisfaction of the Investigating Officer.

(ii) They shall appear before the Investigating Officer on alternate Mondays between 2 p.m. and 3 p.m. till the filing of the final report.

(iii) They shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him court or to any police officer from disclosing such facts to the or tamper with the evidence.

(iv) They shall not commit any offence while on bail.

In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law.