IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HON'BLE MR.JUSTICE P.Q. BARKATH ALI FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 CRL.A.No. 542 of 2011() ----------------------- AGAINST THE ORDER DATED 19/03/2011 IN CRMP.231/2011 IN SC.41/2011 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): ACCUSED NO.25 --------------------------- ABDUL LATHEEF, AGED 40, S/O.MUHAMMED KARIMPAYIL VEEDU, ULIYANNOOR KARA, KADUNGALLUR, ERNAKULAM DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADDL. R2. NATIONAL INVESTIGATION AGENCY, NEW DELHI ADDL. SECOND RESPONDENT IMPLEADED AS PER ORDER DATED 22-7-2011. SRI.M.AJAY, SPL. PUBLIC PROSECUTOR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8-8-2011, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING: V. RAMKUMAR & P. Q. BARKATH ALI, JJ. .................................................... Crl.Appeal No. 542 of 2011 ................................................... Dated this the 23 rd day of September, 2011 JUDGMENT V.Ramkumar J. In this appeal filed under Sec. 21 (4) of the National Investigation Agency Act, 2008 (N.I.A. Act for short) the appellant who is accused No. 25 of Crime No. 704 of 2010 of Muvattupuzha Police Station for offences punishable under Sections 143, 147, 148, 120 B , 323, 324, 326, 341, 427, 506 (ii) and 307 read with Sec. 149 I.P.C. and Sec. 3 of the Explosive Substances Act, 1908 and Section 15 read with Sec. 16, 18, 18 B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, seeks his enlargement on bail. The occurrence was one in which there was an attempt on the life of Professor T.J. Joseph of Newman College, Thodupuzha who was assaulted by six unidentified persons and whose left had was chopped of. After the National Investigation Agency took over the investigation, the case was re-registered as R.C. No. 1/2011. Pursuant to the charge-sheet having been filed before the Special Court at Ernakulam that Court has taken cognizance Crl. Appeal No. 542 of 2011 :2: of the offences and registered the case as S.C. No. 41 of 2011. The appellant was arrested on 21-7-2010. 2. We heard Advocate Sri.B. Raman Pillai, the learned counsel appearing for the appellant and Adv. Sri. M. Ajay, the learned Special Public Prosecutor for the N.I.A. 3. The learned counsel for the appellant made the following submissions before us in support of the appeal:- The charge against A25 (the appellant) is that he provided asylum to A8 in a flat at Thrissur and he also arranged safe harbour to A35 and A36 in the said flat. A8, A35 and A36 were not the assailants who attacked Professor Joseph. CWs 47 to 58 who are the witnesses to prove the criminal conspiracy have not mentioned the name of A25. A26 (Moideenkutty) who allegedly harboured the very same A8 was granted bail in Crl. Appeal 346 of 2011. CW39 would say that when he came to the flat at Thrissur he saw A8 and A25 there. He had no previous acquaintance with both A8 and A25. No test identification parade has been conducted. CW 44 who is the brother-in-law of A25 does not speak of any harbouring by the appellant. CWs 66 and 67 who had seen A8 near a flat under construction did not see A25. A8 was allegedly harboured in flat No. 7 B Crl. Appeal No. 542 of 2011 :3: of which one Iqbal who is the brother-in-law of A25 had taken up the work of interior decoration . The said flat belongs to somebody else. CW 80 is the father of the said Iqbal. But Iqbal is not a charge witness. CW 114 is the registered owner of the Maruti Car in which the appellant had allegedly taken A8 to Thrissur. The said car has already been seized and subsequently released to CW114. The appellant is mainly roped in under Section 19 of the Unlawful Activities (Prevention) Act, 1967. Six of the accused persons have already been released on bail. 4. We are afraid that we find ourselves unable to accept the contentions of the appellant. The appellant (A25) is the first cousin of Najeeb (A35) . Both of them are members of the Uliyannur Unit of the Popular Front of India ( “PFI” for short). The appellant is an active worker of PFI/NDF for the past 10 years. The document seized from the car of Dr. Raneef (A9) at the time of his arrest shows that the appellant was entrusted with the charge of supply of food for the participants in the PFI freedom parade scheduled to be conducted on 15-08-2010 but which was banned by the District Magistrate. According to the prosecution, the appellant and other accused persons conspired to commit the offences in this case . The appellant had assisted A8 (Yoonas Aliyar) one of the prime accused in this case to escape from Aluva in the Maruti Ritz Car bearing Reg. No. Crl. Appeal No. 542 of 2011 :4: KL/42-C 4700. At Thrissur, the appellant arranged a flat under construction near the Aswini Hospital. The said flat was taken on contract for interior decoration by Iqbal the brother-in-law of the appellant . Thereafter on the direction of Niyas who is still absconding the appellant carried A8 to Puthanathani in Malappuram District and entrusted him with Ibrahim (A53) who is still absconding. The said Ibrahim who is running a shoe mart received A8 from the appellant for safe sheltering. The appellant has also arranged safe hiding place in the aforesaid flat to A35 (Najeeb) and A36 (Noushad). The complicity of the appellant is revealed by the statements of Varghese (LW 39), Rijoi (LW-42), Narayanan (LW-43), Anvar Hassan (LW44), Dharmesh (LW66), Tony (LW 67), Abdul Hakkim (LW80) and Najathulla Sidhique (LW 114). LW138 who is the Nodal Officer of B.S.N.L. has proved the call details pertaining to the mobile phone 9447798692 used by the appellant for calling and receiving calls from Nassar (A28) the kingpin of the operation and who is still absconding, Dr. Raneef , A35 (Najeeb) and A38 (Manaf). The proviso to Sec. 43D (5) of the Unlawful Activities (Prevention) Act reads as follows:- “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Sec. 173 of the Code is of the opinion that there are Crl. Appeal No. 542 of 2011 :5: reasonable grounds for believing that the accusation against such person is prima facie true”. 5. When there are reasonable grounds for believing that the accusation against the appellant is prima facie true, we do not find any good ground to release the appellant on bail. It is well settled that grant of bail to a co-accused is not a ground for enlargement on bail to another. This appeal is accordingly, dismissed. Dated this the 23rd day of September, 2011. Sd/-V. RAMKUMAR, JUDGE Sd/-P.Q.BARKATH ALI, JUDGE ani/ /true copy/ P.S. to Judge