Arumughan v. State of Kerala and Excise Head Quarters

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 BAIL APPL. NO. 3640 OF 2024 ``` ``` CRIME NO.56/2024 OF AGALI EXCISE RANGE OFFICE, PALAKKAD ``` ## `PETITIONER:` ``` ARUMUGHAN AGED 46 YEARS C/O LAKSHMI, MANI NIVAS, SHOLAYUR P.O, MANNARKAD, PALAKKAD DISTRICT, PIN – 678581 ``` ``` BY ADVS.S.K.ADHITHYAN REUBEN CHARLY SHAHINA NOUSHAD ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` 2EXCISE HEAD QUARTERS BAKERY JUNCTION ROAD, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, NANDAVANAM, PALAYAM THIRUVANANTHAPURAMPIN, PIN – 695033 ``` ## `OTHER PRESENT:` ``` SR PP SRI C. S. HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3640/2024_ _-:2:-_ _Dated this the 28[th] day of May, 2024_ ## **O R D E R** 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 sole accused in O.R. No.56/2024 of the Excise Range Office, Agali, Palakkad, registered against him for allegedly committing the offences punishable under Sections 8(1), 8(2) and 55 (g) of the Kerala Abkari Act 1 of 1077(‘Act’, for short). 3. The crux of the prosecution case is that; on 21.04.2024, at around 14 hours, the accused was apprehended by the Excise officials for allegedly being found in possession of 25 litres of arrack and 320 litres of wash. Thus, the accused has committed the above offence. _B.A.No.3640/2024_ _-:3:-_ 4. Heard; Sri. S.K. Adhithyan, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The contraband articles were not seized from the possession of the petitioner or from his property. In fact, the contraband was seized from his shed, near the house of a person named ‘Kannama’. The petitioner is a tribal, who is living in the forests in Attapadi. The Investigating Officer has deliberately made the petitioner an accused to save the real culprits. 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 seriously opposed the application. He submitted that the _B.A.No.3640/2024_ _-:4:-_ Investigating Officer found the petitioner in possession of the contraband article. When he attempted to arrest, he took to his heels. There are incriminating materials to establish that the contraband belongs to the petitioner. It is after the petitioner fled from the scene of occurrence that he filed the present application. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Moreover, the application is hit by Section 41A of the Act. Hence, the application may be dismissed. 7. The prosecution allegation is that the Investigating Officer was found the petitioner in possession of 25 liters of arrack and 320 liters of wash, which were stored in different Cans. When the Investigating Officer attempted to arrest the petitioner, he fled away from the scene of occurrence. The _B.A.No.3640/2024_ _-:5:-_ petitioner contends that the contraband articles were seized from a property belonging to a person named ‘Kannama’. Therefore, the petitioner cannot be made an accused in the crime. Hence, the petitioner is entitled to an order of pre-arrest bail. 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 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 _B.A.No.3640/2024_ _-:6:-_ 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. 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; _B.A.No.3640/2024_ _-:7:-_ (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 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 _B.A.No.3640/2024_ _-:8:-_ 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 self-imposed limitations. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity and nature of the accusations levelled against the petitioner, that the investigation in the case is at its preliminary stage, that there are incriminating materials to show the petitioner's involvement in the crime, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not convinced that the _B.A.No.3640/2024_ _-:9:-_ petitioner has diluted the rigour under Section 41A of the 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 exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 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** DST/28.05.24 //True copy// P.A. To Judge