Ayyaswami v. State of Kerala and The Excise Inspector, Agali Excise Range

``` 2025:KER:31817 ``` ``` 1 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5438 OF 2025`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 11[TH] DAY OF APRIL 2025 / 21ST CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 5438 OF 2025 ``` ``` CRIME NO.45/2025 OF Agali Excise Range Office, Palakkad ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.3538 OF 2025 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/ACCUSED:`** ``` AYYASWAMI AGED 45 YEARS S/O.KARUPPUSWAMI, PULIYAPPATHY DESOM, MATTATHUKADU, KOTTATHARA VILLAGE, ATTAPPADY TRIBAL TALUK, PALAKKAD DISTRICT, PIN - 678581 ``` ``` BY ADV BABU S. NAIR ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031`** - **`2 THE EXCISE INSPECTOR AGALI EXCISE RANGE, AGALI, PALAKKAD DISTRICT, PIN - 678581`** ``` SRI NOUSHAD K A, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 11.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:31817 ``` ``` BAIL APPL. NO. 5438 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J. -------------------------------B.A. No.5438 of 2025 ---------------------------------------------Dated this the 11[th] day of April, 2025** ## **`ORDER`** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.45/2025 of Agali Excise Range. The above case is registered against the petitioner alleging offence punishable under Section 55(g) of the Kerala Abkari Act. 3. The prosecution case is that, the accused was found in possession of 200 litres of wash on 01.03.2025. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 01.03.2025 and he is ready to abide any conditions if this Court grant him bail. The Public Prosecutor opposed the bail application. The Public Prosecutor ``` 2025:KER:31817 ``` ``` BAIL APPL. NO. 5438 OF 2025 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** submitted that there is criminal antecedent to the petitioner and he is involved in yet another case with same set of allegation. 6. This Court considered the contentions of the petitioner and the Public Prosecutor. The petitioner earlier filed a bail application before this Court as BA No.3538/2025. After hearing both sides, this Court was not inclined to grant bail to the petitioner considering the seriousness of the allegation against the petitioner. At that stage, the counsel for the petitioner sought permission to withdraw the bail application with liberty to move it again. This Court granted liberty to move it again after two weeks. Accordingly the present bail application is filed. It is true that the allegation against the petitioner is serious. But the petitioner is in custody from 01.03.2025. Indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. I make it clear that if the petitioner is involved in similar offence in future, the Investigating Officer is free to file appropriate ``` 2025:KER:31817 ``` ``` 4 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5438 OF 2025`** application for cancellation of bail and if such an application is received, the jurisdictional court is free to pass appropriate orders in that application even though this order is passed by this Court. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870],** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 8. Moreover, in **Jalaluddin Khan v. Union of** **India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out ``` 2025:KER:31817 ``` ``` BAIL APPL. NO. 5438 OF 2025 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modifcation that the bail can be granted if the conditions in the statute are satisfed. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 9. In **Manish Sisodia v. Directorate of** ## **Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say ``` 2025:KER:31817 ``` ``` BAIL APPL. NO. 5438 OF 2025 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as ``` 2025:KER:31817 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5438 OF 2025`** and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. The petitioner shall appear before the Investigating Officer on all Mondays at 10 am, till final report is filed. 6. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this ``` 2025:KER:31817 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5438 OF 2025`** Court in **Anzar Azeez v. State of Kerala** [2025 SCC OnLine KER 1260] is applicable in this case also. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution is at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. sd/- **P.V.KUNHIKRISHNAN JUDGE** jv