Bail Application No. 264 of 2024, High Court of Kerala at Ernakulam

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-02-05
Court Decision / Holding: The application is allowed; the petitioner Himesh is to be released on bail on a bond of Rs. 50,000 with two solvent sureties of Rs. 50,000 each, to the satisfaction of the court having jurisdiction, under the following conditions: (i) appearance before the Investigating Officer every Saturday 9 a.m.–11 a.m. for two months or until final report; (ii) not to induce or tamper with witnesses; (iii) not to commit any offence while on bail; (iv) surrender the passport, if any; (v) court may cancel or modify bail for violation; (vi) IO may conduct investigations and effect recoveries during bail per Sushila Aggarwal doctrine.
Final Disposition: Application allowed; bail granted.

Parties to the Case

Appellants / Petitioners

Himesh

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Smt. Seetha S., Senior Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Suman Chakravarthy
• Brejitha Unnikrishnan
• Sudeesh K.E.

Counsels for Respondents

• Smt. Seetha S., Senior Public Prosecutor

Case Synopsis & Summary

Bail Application No. 264 of 2024 before the Kerala High Court concerns the grant of bail under Section 439 CrPC to Himesh in crime No.04/2024 registered by the Trivandrum Excise Range Office, Thiruvananthapuram. The petitioner is charged under Sections 67B and 55(i) of the Kerala Abkari Act, and was arrested on 5 January 2024. The prosecution’s case alleges possession of 13.5 litres of Indian Made Foreign Liquor and Rs. 500 while engaged in sale. The petitioner’s counsel contends innocence and asserts that he has been falsely implicated; the investigation is nearly complete and recovery was effected, so continued detention is unnecessary. The Public Prosecutor opposes bail, stressing ongoing investigation and prior criminal antecedents in two similar cases, arguing that bail could enable repetition of offences. After considering the record, the court notes that the investigation is at its fag end and that detention for about a month has become unnecessary, even though Section 41A of the Abkari Act applies. The court grants bail conditioned on a bond of Rs. 50,000 with two solvent sureties of equal amount, and imposes requirements such as weekly appearance before the Investigating Officer, non-inducement, non-tampering with evidence, surrender of passport if any, and the court’s power to cancel or modify bail. The order cites Sushila Aggarwal as a controlling precedent for allowing investigation and potential recoveries during bail while maintaining judicial supervision.

Provisions of Law Cited

Code of Criminal Procedure, 1973, Section 439Kerala Abkari Act, Sections 67B and 55(i)Kerala Abkari Act, Section 41A

Legal Doctrines & Maxims

Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and that he has been falsely implicated; he has been in judicial custody since 5 January 2024 and asserts the investigation has largely concluded with recovery effected, making continued detention unnecessary. He seeks release on bail on a reasonable bond, arguing no likelihood of tampering with evidence and no risk to the public given the near completion of investigation.

Contentions of Respondents

The Public Prosecutor opposes bail, noting ongoing investigation and the petitioner’s alleged criminal antecedents in two similar cases. She argues that release on bail could lead to repetition of offences and undermine the investigation, justifying continued detention or stringent conditions if bail is granted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited as a controlling precedent to permit investigation and recoveries during bail and to justify the conditions imposed for bail.

Extracted Judgment Text

Exact text extracted from official judgment records.

1 Bail Application No. 264 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 BAIL APPL. NO. 264 OF 2024 ``` ``` CRIME NO.04/2024 OF Trivandrum Excise Range Office, ``` ``` Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` HIMESH, AGED 39 YEARS S/O.KARUNAKARAN,ANIZHAM VEETIL, TC 64/251, VIVEK NAGAR,MANULULADICHAMANGALAM, NEMOM VILLAGE,THIRUVANANTHAPURAM, PIN - 695020 BY ADVS. SUMAN CHAKRAVARTHY BREJITHA UNNIKRISHNAN SUDEESH K.E. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 264 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No. 264 of 2024** **-----------------------------------** ## **Dated this the 5[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in crime No.4/2024 of the Excise Range Office, Thiruvananthapuram, registered against him, for allegedly committing the offences punishable under Secs. 67B and 55(i) of the Kerala Abkari Act. The petitioner was arrested on 5.1.2024. 2. The gist of the prosecution case is that: around 3.p.m on 5.1.2024, the accused was found in possession of 13.5 litres of Indian made foreign liquor and was engaged 3 Bail Application No. 264 of 2024 in the sale of the said liquor. The petitioner was also found in possession of an amount of Rs.500/-. Thus, the accused has committed the above offences. 3. Heard; Sri.Suman Chakravarthy, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent. 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. The petitioner has been in judicial custody since 5.1.2024. The investigation in the case is complete and recovery has been effected. The petitioner’s continued detention is unnecessary. Hence, the petitioner may be released on bail. 4 Bail Application No. 264 of 2024 5. The learned Public Prosecutor opposed the application. She contended that the investigation is in progress. The petitioner has criminal antecedents because he is involved in two cases of similar nature. If the petitioner is let off on bail, there is every likelihood of him committing similar offence. 6. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the fact that the petitioner has been in judicial custody since 5.1.2024, which is exactly a month, that the investigation in the case is at its fag end and the recovery has been effected, notwithstanding the rigour under Sec.41A of the Abkari Act, I am of the definite view that petitioner’s continued 5 Bail Application No. 264 of 2024 detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. He shall also 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 6 Bail Application No. 264 of 2024 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 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 moved and entertained by the court below. 7 Bail Application No. 264 of 2024 (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 another** [2020 (1) KHC 663]. sd/- sks/5.2.2024 **C.S.DIAS, JUDGE** 8 Bail Application No. 264 of 2024