Ashok Kumar K v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2763 OF 2024 ``` ``` CRIME NO.22/2024 OF KUMBALA EXCISE RANGE OFFICE, KASARGOD ``` ## `PETITIONER:` ``` ASHOK KUMAR K AGED 37 YEARS S/O APPUNNI, KUYYANKOTT HOUSE, MYLATTI DESOM, THEKKIL VILLAGE, KASARGOD, PIN – 671319 ``` ``` BY ADVS.BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS KAVYA P.R. LEKSHMI PRIYA V. BASIL SCARIA ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2763/2024_ _-:2:-_ _Dated this the 8[th] day of April, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), by the sole accused in Crime No.22/2024 of the Excise Range Office, Kumbala, Kasaragod, registered against him for allegedly committing the offences punishable under Sections 58 & 67B of the Kerala Abkari Act,1 of 1077(in short, ‘Act’). The petitioner was arrested on 07.02.2024. 2. The essence of the prosecution case is that; on 07.02.2024, at around 14 hours, the accused was found transporting 112.32 litres of Indian Made Foreign Liquor (IMFL), meant for sale in Karnataka State, on a car bearing registration No.KL-60-N-3521. The accused was arrested then and there on the spot with the contraband article. Thus, the accused has committed the above offences. ## _B.A.No.2763/2024_ _-:3:-_ 3. Heard; Sri. Basil Chandy Vavachan, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. 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. In any given case, the petitioner has been in judicial custody since 07.02.2024, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under proviso to sub-section (2) of Section 167 of the Code. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner was found in possession of huge quantity of contraband article. The investigation in the case is in progress. If _B.A.No.2763/2024_ _-:4:-_ the petitioner is released on bail, he is likely to commit a similar offence. Moreover, the application is hit by the rigour under Section 41A of the Act. Hence, the application may be dismissed. 6. On a consideration of the materials, it is evident that the petitioner was arrested on 07.02.2024. Indisputably, the investigation in the case is not complete and the final report has not been laid. The offences alleged against him are all punishable for a period of less than 10 years. 7. Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- 167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter _B.A.No.2763/2024_ _-:5:-_ prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but _B.A.No.2763/2024_ _-:6:-_ the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. [Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] 8. Interpreting sub-section (ii) of Section 167 of the Code, the Constitutional Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay** [(1994) 5 SCC 410] has observed as follows:- "53.(2)(b) The "indefeasible right" of the accused to be _B.A.No.2763/2024_ _-:7:-_ released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." 9. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in **Sanjay Dutt v.State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues _B.A.No.2763/2024_ _-:8:-_ in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 10. In the instant case, as the petitioner was remanded to judicial custody on 07.02.2024, which is more than 61 days, the offences alleged against the petitioner are all punishable for a period of less than 10 years, the Investigating Officer has not laid Final Report till date, I am of the definite view that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Section 167(2) of the Code. Hence, I allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which _B.A.No.2763/2024_ _-:9:-_ shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer as and when required; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for _B.A.No.2763/2024_ _-:10:-_ cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/08.04.24 //True copy// P.A. To Judge