IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST APRIL 2009 / 1ST VAISAKHA 1931 CRL.A.No. 766 of 2009() ----------------------- AGAINST THE ORDER DATED 03/02/2009 IN MC.69/2008 IN SC.359/2008 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): COUNTER PETITIONER 1 & 2 ------------------ 1. AMMAD HAJI, VADAKKE CHEEROTH, OTHIYIL(H)KALLACHI.(PO),KOZHIKODE.(DISTRICT). 2. MATHATH SOOPI HAJI,PADITHARAMMEL HOUSE, VISHNUMANGALAM(PO),VADAKARA,KOZHIKODE. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): COMPLAINANT ------------------- STATE OF KERALA,REPRESENTED BY THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS.P. JOSEPH, J. ------------------------------- Crl. Appeal No.766 of 2009 ------------------------------- Dated this the 21st April, 2009 J U D G M E N T Heard learned counsel for the appellants and the learned Public Prosecutor who took notice for the respondent, State. 2. The appeal arises from the order dated 3.2.2009 in M.C.No.69/08 in S.C.No.359 of 2008 of the Court of Special Judge (NDPS Act cases), Vadakara imposing penalty of Rs.10,000/= each on the appellants for non-performance of the conditions of the surety bond executed by them. Learned counsel for the appellants submit that as per Annexures 1 and 2 orders, the case against the accused was allowed to be withdrawn by the same court under Section 321 of the Code of Criminal Procedure and that the impugned order was passed subsequent to the order granting withdrawal under Section 321 of Code of Criminal Procedure. According to the learned counsel, the application for withdrawal of the case was pending and that is why the accused did not appear in the court below on the relevant date. Crl.A.No.766 of 2009 2 3. Learned Public Prosecutor submitted that there was a direction to the appellants to produce the accused on 23.12.2008 and that was not complied. 4. It is not in dispute that appellants were not able to cause production of the accused in the court below, as directed by the court on 23.12.2008. Therefore, the subsequent withdrawal of the case by itself did not mean that there was no failure to comply with the conditions of the surety bond. However, taking into account the fact that the case itself has been withdrawn, I am inclined to think that the penalty of Rs.1500/= each is sufficient in the interest of justice. In the result, the appeal is allowed in part, modifying the penalty payable by the appellants as Rs.1500/= (Rupees One Thousand Five Hundred only) each and in default of payment, to undergo detention in civil prison for one week each. THOMAS P.JOSEPH, JUDGE. nj.