Abdul Rahiman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945** **BAIL APPL. NO. 3782 OF 2023** **CRIME NO.48/2023 OF Bediduka Excise Range Office, Kasargod PETITIONER/S:** **ABDUL RAHIMAN AGED 31 YEARS SON OF MUHAMMED, RESIDING AT KOYAPADI HOUSE, PATTARUMOOLA DESOM, MUTTATHODY VILLAGE AND POST, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671123** **BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE EXCISE INSPECTOR BADIADKA EXCISE RANGE OFFICE, KASARAGOD DISTRICT, PIN - 671551** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3782 OF 2023 2 ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.48/2023 of the Bediduka Excise Range, Kasargod, registered against him for allegedly committing the offences punishable under Sections 58 and 67 B of the Kerala Abkari Act. 3. The crux of the prosecution case is that; on 02.05.2023, at around 22 hours, when the Excise Inspector and party were on patrol duty and checking the vehicles at the Kilinagar Junction on Neerchal-Bela road in Neerchal Village, they intercepted a motor car bearing No.KL-14P 4318 and seized 388.8 liters of Indian made foreign liquor which was meant for sale in the State of Karnataka. Thus, the accused has committed the above offences. BAIL APPL. NO. 3782 OF 2023 3 4. Heard; Sri.T.Madhu, learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation leveled against him. The petitioner has been falsely implicated in the crime. The petitioner was not found in conscious possession of the contraband article. It is only because the car belonged to the petitioner he has been implicated in the crime. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the contraband article was seized from the motor car belonging to the petitioner. The investigation in the case is at its nascent stage. The petitioner’s BAIL APPL. NO. 3782 OF 2023 4 custodial interrogation is necessary and recovery is to be effected. Moreover, the application is hit by the rigour under Section 41 A of the Abkari Act. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, on 02.05.2023, the petitioner's vehicle was intercepted by the Excise party and 388.8 liters of Indian made foreign liquor was s e i z e d f r o m t h e v e h i c l e . ## 8. Section 41 A of the Abkari Act reads as ## follows:- [41A. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of three years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor or the Assistant Public BAIL APPL. NO. 3782 OF 2023 5 Prosecutor, as the case may be, opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (Central Act, 2 of 1994) or any other law for the time being in force on granting of bail] 9. The above provision explicitly postulates that if the Public Prosecutor opposes an application, then this Court has to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. 10. On a consideration of the accusations levelled against the petitioner, especially the fact that the contraband that was meant only for sale in the State of Karnataka, was seized from the petitioner's vehicle and there are incriminating materials to substantiate that the petitioner is involved in the case, I am prima facie satisfied that the petitioner has BAIL APPL. NO. 3782 OF 2023 6 committed the above offence. # 11. In **Siddharam Satlingappa Mhetre** **v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair BAIL APPL. NO. 3782 OF 2023 7 and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of selfimposed limitations. ## 12. In **Jai Prakash Singh v. State of Bihar** **and another,** [(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of prearrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to BAIL APPL. NO. 3782 OF 2023 8 grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, the findings rendered above, and on comprehending the seriousness, gravity and nature of the accusation levelled against the petitioner, that the investigation in the case is at its preliminary stage, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not convinced that the petitioner has diluted the rigour under Section 41A of the Abkari Act, to hold that he has not committed the offences and is not likely to commit the offences in future. The petitioner has not made out any exceptional grounds to invoke the BAIL APPL. NO. 3782 OF 2023 9 extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/05.02.24