Arrest warrant issued against accused in appeal from acquittal does not offend personal liberty.

M. Jeyapaul, J.

The first respondent / first accused in Crl. A. No. 401 of 2005 prefers Crl. M.P. No. 1971 of 2006 and the fourth respondent/fourth accused in Crl. A. No. 401 of 2005 prefers Crl. M.P. No. 8423 of 2005, seeking recall of the non-bailable warrant issued as against them in Crl. M.P. No. 3995 of 2005.

2. The petitioners along with two other accused faced a trial for offences under Sections 8 (c) read with Sections 21, 25, 28 and 29 of the Essential Commodities and Narcotic Drugs and Psychotropic Substances Act. By a judgment dated 20.4.2005, the Special Court for Essential Commodities and Narcotic Drugs and Psychotropic Substances Act cases, Coimbatore acquitted all the accused. As against such an order of acquittal, the complainant Intelligence Officer of Narcotics Control Bureau, South Zonal Unit,Chennai preferred an appeal.

3. Thecomplainant also filed Crl. M.P. No. 3995 of 2005, seeking issuance of non-bailable warrant to secure all the accused in this case invoking the provision under Section 390 of the Cr. P.C. This Court having thought it fit to admit the appeal against acquittal filed by the complainant Intelligence Officer, chose to issue non-bailable warrant as against the accused for arrest and production before the Special Court for Essential Commodities Nacrotic Drugs and Psychotropic Substances Act Cases, Coim-batore for remanding as contemplated under Section 390 of the Cr. P.C.

4. The petitioners who are the first and fourth accused seek recall of the warrant issued as against them with the undertaking that they will not abscond or evade any service. As the petitioners undertake to make themselves available during the pendency of the appeal, it is prayed that the warrant of arrest issued as against them may be recalled.

5. The de facto complainant Intelligence Officer would contend that the question of recalling the warrant of arrest issued by the High Court invoking the jurisdiction under Section390 of Cr. P.C. merits no consideration. At best, they can apply for bail on surrendering before the Court as per the directions of this Court.

6. The learnedsenior counsel appearing for the advocate on record for the petitioners would submit that Section 390 of the Cr.P.C. contemplates admitting the accused to bail also.

7. He would further submit that the petitioners who have been acquitted cannot be detained while they enjoy the presumption of innocence even at the appellate stage against the spirit of Article 21 of the Constitution of India.

8. The learned counsel for the Intelligence Officer/Special Public Prosecutor would submit that only after considering the gravity of the case, the antecedents of the petitioners and the material error committed by the trial Court in acquitting the accused, this Court rightly invoked the powers under Section 390 of Cr.P.C. and issued warrant of arrest as against the petitioners. He would further submit that the application seeking recall of the non-bailable warrant does not arise at all.

9. The fourth accused Ramlal Banslal is found to have absconded on obtention of bail on medical grounds from the Special Court, Coimbatore. In response to the distress notice issued to the sureties, they paid the bond amount of Rs.1.5. lakhs and got themselves discharged. The fourth accused is found to have absconded for four long years. When he was re-arrested and remanded to judicial custody to face the trial of the case, the Special Court, Coimbatore had chosen to grant him bail again on 21.2.2005, in spite of the written objections filed by the complainant throwing to winds the checks and balance found under Section 37 of Narcotic Drugs and Psychotropic Substances Act.

10. This Court was pleased to cancel the said bail granted by the Special Court, Coimbatore by order dated 13.4.2005.

11. The fourth accused Ramlal Banslal has chosen to surrender before the Special Court, Coimbatore, on 18.4.2005 and waive his right of cross-examination of the witnesses examined