Anil Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 Bail Appl..No. 5417 of 2013 () ------------------------------- AGAINST THE ORDER/JUDGMENT IN CRMC 1668/2013 of D.C & SESSIONS COURT,TRIVANDRUM DATED 26-07-2013 CRIME NO. 30/2013 OF KAZHAKUTTOM EXCISE RANGE OFFICE , THIRUVANANDAPURAM ACCUSED(S)/PETITIONER/ACCUSED: ---------------------------------------------------------- ANIL KUMAR AGED 33 YEARS S/O. CHELLAPPAN, KURUKKUTTY PARASSALA VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN COMPLAINANT(S)/RESPONDENTS: ------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE KAZHAKUTTAM POLICE STATION, KAZHAKUTTAM. BY DGP SRI.T.ASAF ALI R BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27-08- 2013, THE COURT ON 2/9/2013 PASSED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** ## **==========================** **B.A. No. 5417 of 2013 ===========================** ## **Dated, this the 2nd day of September, 2013** ## **ORDER** Petitioner is the accused in a crime involving abkari offence punishable under sections 55(a) of the Abkari Act. He has filed the above application seeking his release on bail under section 439 of the Code of Criminal Procedure, for short the Code. 2. Petitioner was found transporting,and, in possession of, 825 litres of spirit in a lorry, without authority or licence, at about 3.30 p.m on 6.5.2013 by an excise party. On his arrest and production before the magistrate he was remanded to judicial custody the same day, which still continues. His application for bail had been turned down by learned Sessions Judge vide Annexure A1 order dated B.A.5417/2013 2 26.7.2013 holding that the embargo under section 41A of the Abkari Act disentitle him to be released on bail. 3. I heard learned counsel for petitioner and also learned Public Prosecutor. 4. Apart from the contentions canvassed to challenge the implication of petitioner in the crime, learned counsel mainly stressed upon the entitlement of petitioner to have default bail under section 167(2) of the Code stating that report has not been laid completing investigation even after his detention continuing for sixty days. Petitioner had moved an application after the expiry of sixty days of detention before the magistrate seeking default bail, but, it was turned down, and, then, he approached the Sessions Judge for bail, which too was declined vide Annexure A1 order, is the submission of counsel. Copy of his application dated 17.7.2013 moved before the magistrate seeking default bail was handed over to me for perusal. Learned Public Prosecutor has B.A.5417/2013 3 not disputed the factual aspects involved over the arrest and detention of petitioner and continuance of his detention exceeding the period of sixty days with the investigation of crime remaining to be completed. 5. The question arising for consideration is whether Section 41A of the Abkari Act with interdictions placed over entitlement of an accused involved in abkari offence to be released on bail override his statutory conferment to have default bail on expiry of the period of detention specified in relation to the offence under section 167(2) of the Code. **==> picture [379 x 40] intentionally omitted <==** cognizable and non-bailable-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central, Act 2 of 1974)- (a) every offence punishable B.A.5417/2013 4 under this Act shall be congnizable; (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 Prosecutor, as the case may be, opposes the application, the Court is satisfied that there are B.A.5417/2013 5 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 1974), or any other law for the time being in force granting of bail. Section 41A of Abkari Act commences with a non obstante clause that notwithstanding the provisions covered by the Code release of any person suspected of committing an abkari offence under the Act shall be subject to the riders imposed under that section. That section mandates providing of opportunity to the publicprosecutor/ B.A.5417/2013 6 Asst.Public Prosecutor to raise his objections to the application for bail of a suspect/accused of an abkari offence. The court should also be satisfied there is reason to presume the innocence of accused and that he is not likely to commit any offence while on bail, to order his release. 7. Section 167 of the Code deals with procedure when investigation cannot be completed in twenty four hours. Proviso to sub section (2) of the above section commands release of an accused in judicial custody after expiry of the period of detention specified in relation to the offence, if he is prepared to and does furnish bail, where investigation has not been completed and report not filed within such period. Offence alleged against petitioner under section 55(a) of the Act is punishable with imprisonment extending to ten years and with fine. In such a case clause (ii) of proviso under sub section (2)of Section 167 of the Code is applicable, which read thus:- “167. Procedure when investigation B.A.5417/2013 7 cannot be completed in twenty four hours- (1) xx xx xx xx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit,for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-(a) xx xx xx B.A.5417/2013 8 (i) xx xx xx (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) xx xx xx” The mandate under section 167(2) of the Code emphatically declare that if an application is filed by accused in a case where no charge sheet has been filed after he has continued in custody for the specified period, and,if magistrate is satisfied that he has continued in detention for B.A.5417/2013 9 the specified period and is prepared to furnish bail, he is obliged to grant the accused bail imposing conditions as found necessary. Section 41A of the Abkari Act no way infringes the entitlement of an accused person in a crime involving abkari offence to seek his release on default bail once he has continued in detention for the specified period and charge sheet is not filed after completing investigation of such crime. The riders imposed under section 41A of Abkari Act over the release on bail of an accused in a crime involving abkari offence do not in any way whittle down or curtail or infringe the statutory default bail conferred on an accused person under section 167(2) of the Code. Once the accused has continued in detention for the specified period and investigation has not been completed in the crime filing report, his right to seek default bail statutorily conferred under section 167(2) of the Code is inviolable and it is not hedged or interdicted by the riders imposed B.A.5417/2013 10 under section 41A of the Act. The above view formed is fortified by the decisions rendered by apex court in **Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453)** and **Sayed Mohd.Ahmad Kazmi v. State(Government of NCT of Delhi) and others (2012)12 SCC 1).** 8. Petitioner who is in custody has undergone detention beyond the specified period applicable to the offence involved under section 167(2) of the Code is not disputed. Investigation of the crime has also not been completed. When that be so, petitioner is entitled to be released on default bail, if he is prepared to furnish bail, irrespective of the circumstance presented in the case over the quantity of spirit, allegedly, seized from his possession. Petition is allowed ordering release of petitioner on bail subject to the following conditions. 1) Petitioner shall execute a bond for Rs.50,000/- with B.A.5417/2013 11 two solvent sureties for the like sum, by each of them, to the satisfaction of the Judicial First Class Magistrate-II Attingal. Identity of the sureties and also their solvency for the sum fixed shall be satisfied by the magistrate insisting for production of valid and acceptable documents. 2) Petitioner shall report before the investigating officer once in a week on every Monday, at a time between 10.00 a.m and 12.00 noon, for a period of four months or till completion of investigation of crime, whichever is earlier, from the date of his release on B.A.5417/2013 12 bail. 3) Petitioners shall not leave the State till completion of investigation of the crime without getting prior permission in writing from the investigating officer. 4) Petitioner shall not get involved in any abkari offence while he continues on bail in the present crime, and if he does so, it is open to the magistrate/sessions judge to revoke his bail without any further orders from this court, but, in accordance with law. 5) Petitioner shall surrender his passport before the magistrate within one B.A.5417/2013 13 week from the date of his release, and if not in possession of passport, then, to file an affidavit stating so, within the above period. ## **S.S.SATHEESACHANDRAN JUDGE** tpl/-