IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Bail Appl..No. 3125 of 2010() ----------------------------- C.R.NO.2/2010 OF EXCISE RANGE, PATHANAMTHITTA. PETITIONER ------------------------------ RAJAN.K.S, KOCHUTHUNDIYIL PUTHEN VEEDU, KARAKADU,MULAKUZHA,CHENGANNUR. BY ADV. SRI.C.S.MANILAL SRI.S.NIDHEESH RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEK CHAND. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. K.HEMA, J. ---------------------------------------------- Bail Application No.3125 of 2010 ---------------------------------------------- Dated 12th July, 2010. O R D E R This petition is filed for granting anticipatory bail, under section 438 of the Code of criminal Procedure Code (`the Code', for short). 2. According to prosecution, the excise officials received anonymous telephone call that ganja was kept in the tea shop run by petitioner and they proceeded to the said shop and on 22.4.2010 at about 11.30 a.m., they conducted a search and seized 1.528 Kg. of Ganja from the said shop. A case was registered against petitioner under Section 20(b)(ii) of the Narcotic Drugs and Psycotropic Substances Act (`the Act', for short). 3. Learned counsel for petitioner submitted that petitioner was hospitalised for six days from 20.04.2010 till 26.4.2010 and on the alleged date of occurrence, viz., 22.4.2010, he was at hospital, undergoing treatment, as an inpatient. Annexure II-discharge summary issued by the doctor will clearly establish these facts, it is further submitted. According to petitioner, this is a false case and BA NO.3125/10 2 hence, anticipatory bail may be granted, it is argued. 4. During pendency of this petition, petitioner requested for an opportunity to explain his innocence to the Investigating Officer. Being carried away by the facts stated in Annexure II-discharge summary, petitioner was given an opportunity, as requested and he was directed to report before the Investigating Officer. Accordingly, he surrendered before the Investigating officer and he was thoroughly interrogated by Investigating Officer, it is submitted by learned Public Prosecutor. 5. Learned Public Prosecutor also submitted that during interrogation, a doubt arose on the genuineness of Annexure II- discharge summary and hence, an enquiry was conducted into the genuineness of the document. The doctor who issued the document was also questioned by Investigating Officer and his statement was also recorded. It is revealed on enquiry that Annexure II is a fabricated document and the entries made therein are all false. The O.P no. and I.P. no. which are referred to in Annexure II, which are purported to be assigned to petitioner do not actually relate to petitioner. Those numbers were allotted to some other persons, it is submitted. BA NO.3125/10 3 6. I.P. no. 12741 was issued to one Muralidharan (not petitioner), who was admitted in the hospital and treated as an inpatient, about 9 years back in 2001. O.P.no.2256 referred to in Annexure II was issued to one Saida, who was treated as an out- patient in the hospital about four months prior to the date of search, on 18.1.2010. Neither of the above numbers referred to in Annexure II relate to petitioner. While the doctor was questioned on this, he told the investigating officer that he had written certain numbers in Annexure II at random, which occurred to his imagination. 7. It is evident from the enquiry that petitioner, with the aid of the doctor created a false document for using the same as genuine, in the proceedings and he produced Annexure II before this court, with a view to defraud the court and get anticipatory bail, it is submitted by learned Public Prosecutor. No relief may be granted to such a person, it is strongly argued. Considering gravity of offence also, this is not a fit case to grant anticipatory bail, it is further argued. 8. On hearing both sides and on a perusal of the available records, I find that this is not a fit case to grant anticipatory bail. The offence allegedly committed by petitioner is under the NDPS Act. The BA NO.3125/10 4 quantity of Ganja involved is 1.528 Kg. Petitioner has not made out any ground to get anticipatory bail. Petitioner took up a plea of alibi but, he utterly failed in substantiating the same. He also produced a false and fabricated medical record before this court, knowing it to be false, to obtain an order in his favour and thereby, he attempted to defraud this court. 9. The conduct of the party who seeks relief under section 438 of the Code is relevant to decide whether anticipatory bail can be granted or not. If the applicant's conduct is contemptuous, fraudulent or unfair, the court shall refuse to exercise its discretion under section 438 of the Code in his favour. The extra ordinary relief shall not be extended to a person who approaches the court with unclean hands. A person who produces a fabricated medical record to obtain an order of anticipatory bail does not deserve any relief under section 438 of the Code. 10. On the facts and circumstances of the case, it appears that petitioner is , prima facie, guilty of a highly objectionable conduct, in procuring a false medical record and producing the same before this court, with a view to deceive this Court and obtain an order of anticipatory bail. If the allegations made against him in respect of the BA NO.3125/10 5 medical record are established, those by themselves would amount to commission of an offence. To such a person, I am most reluctant to grant anticipatory bail. In my view, he deserves to be dealt with, for the criminal act which he appears to have heen committed, in accordance with law. 11. The power under section 438 of the Code is discretionary in character. It is also extraordinary in nature. In Adri Dharan Das v. State of W.B in (2005) 4 SCC 303, the Supreme Court held, “the power exercisable under Section 438 is somewhat extraordinary in character”. While exercising discretion, the court can also look into the conduct of the party, who seeks the discretionary relief. 12. In Mohammadia Coop. Building Society Ltd. v. Lakshmi Srinivasa Coop. Building Society Ltd.,(2008) 7 SCC 310, the Supreme Court considered the role of conduct of a party while seeking discretionary relief and it is held thus: “There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts BA NO.3125/10 6 ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands”. 13. A bare perusal of Annexure II-discharge summary reveals that several entries are made therein to make it appear that the document is genuine. The entries are made in such a way that any court would easily be persuaded to act upon the document. Not only false IP and OP numbers are shown in the document but several other false details relating to the treatment purportedly given to the patient on different dates are also incorporated in the document in a convincing manner. A lot of effort seems to have been taken in creating the false document. 14. I am surprised to hear from learned Public Prosecutor that the doctor who issued Annexure II is a Medical Officer attached to the Medical College Hospital, Alappuzha and he is now working in a private hospital, after taking leave from the Medical College. I have gone through the statement of the doctor recorded by the Investigating Officer. If the allegations are true, I have no doubt that whoever be the doctor, who appears to have created Annexure II-discharge summary, does not deserve to continue in his profession. BA NO.3125/10 7 15. The doctor has not only abused the noble medical profession, but he committed a serious offence also. Since I have not heard the doctor who has allegedly concocted Annexure II, I am not making any further comments. When the fabrication from the side of the doctor was brought to the notice of petitioner's counsel, he had nothing to say, except that some action may be taken against the doctor who issued Annexure II. In my view, the doctor who created Annexure II deserves to be dealt with for the commission of the alleged criminal act, in accordance with law. 16. Considering the several facts discussed above, I find that anticipatory bail cannot be granted to petitioner who has attempted to defraud this court. This petition has only to be dismissed with the contempt it deserves. He is bound to surrender and co- operate with investigation, without any delay. If not, it is likely that investigation will be adversely affected. In the peculiar facts and circumstances, I also find that administration of justice demands that exemplary cost must be ordered against petitioner. 17. I am also of view that to secure ends of justice, certain other directions also have to be issued by this court, while BA NO.3125/10 8 disposing of this petition. Taking all the above facts into consideration, the following order is passed : 1. The prayer for anticipatory bail by petitioner is rejected. 2. Petitioner shall surrender before the Investigating Officer without any delay and co-operate with the investigation. 3. Whether he surrenders or not, respondent is at liberty to arrest him and proceed against him in accordance with law. 4. No further application by petitioner in this crime for anticipatory bail, will be entertained by this Court hereafter. 5. Petitioner shall pay an amount of Rs.15,000/- to the Kerala High Court Legal Services Committee within two months from today, as cost. 6. At the time of consideration of bail application, if any, filed by petitioner, the trial court shall ensure that the above cost is paid by petitioner. 7. Registry shall forward a copy of this order along with BA NO.3125/10 9 copy of Annexure II to the Secretary, Medical Council and also, to the Secretary, Health services, who is dealing with Medical Education, for taking necessary action against the Medical Officer who has created Annexure II, in the light of the observations made in this order. 8. Issue a copy of this order to learned Public Prosecutor. Petition is dismissed with costs. K.HEMA, JUDGE. tgs