Bail Application No. 319 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.DIAS
Judgment Date: 2024-02-01
Court Decision / Holding: The application is allowed. The petitioner is directed to be released on bail on a bond of Rs.50,000 with two solvent sureties for an equal amount, subject to conditions: (i) appearance before the Investigating Officer every Saturday for two months or until final report, (ii) no inducement or tampering, (iii) no offence while on bail, (iv) surrender of passport, (v) power to cancel bail on breach, (vi) court may modify the bail conditions, and (vii) IO may continue investigation and effect recoveries while on bail as per the principle laid down in Sushila Aggarwal v. State (NCT of Delhi) and another. The decision notes that Sec.41A’s rigour is diluted in the present facts.
Final Disposition: Bail granted but with conditions as stated.

Parties to the Case

Appellants / Petitioners

KOCHUPAUL

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv Premchand M.

Counsels for Respondents

• Sri.C.S Hrithwik, Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 439 CrPC by Kochupaul, the sole accused in Crime No.1048/2023 of Wadakkanchery Police Station, Thrissur, for alleged offences under Sections 55(a) and 55(i) of the Kerala Abkari Act, 1077. The prosecution contends that on 31.12.2023 the accused was found in possession of 138 bottles (500 ml each) of Indian-made foreign liquor, totaling 69 litres, constituting a serious contravention of the Abkari Act. The petitioner asserts innocence and false implication, and notes he has been in judicial custody since 31.12.2023, with investigation said to be near completion and a recovery already effected. He is the sole breadwinner and is prepared to comply with stringent conditions if released on bail. The Public Prosecutor opposes bail, highlighting the large quantity involved, ongoing investigation, and the possibility of reoffending given prior antecedents. The judge, after careful consideration, observes that the investigation is at its fag end and there appears to be no immediate ground to believe the accused would commit a similar offence; the rigour under Sec.41A of the Act is said to be diluted in the circumstances. Accordingly, bail is granted on payment of a Rs.50,000 bond with two solvent sureties, and subject to conditions including regular appearance before the IO, non-tampering, no offences while on bail, passport surrender, and potential cancellation for breach, with reference to Sushila Aggarwal v. State (NCT of Delhi) and another.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 55(a) and 55(i) of the Kerala Abkari Act, 1077Section 41A of the Kerala Abkari Act, 1077

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and false implication, having been in judicial custody since 31.12.2023. He asserts that the investigation is practically complete with recovery effected, and that he is the sole breadwinner. He is willing to abide by stringent conditions and submits that bail should be granted.

Contentions of Respondents

The prosecution argues that the accused possessed a large quantity of Indian-made foreign liquor in violation of the Abkari Act, with the investigation still in progress and the accused having prior antecedents. It was submitted that releasing him on bail would risk recurrence of the offence and hinder the ongoing investigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to justify that investigation and recoveries may proceed during bail, aligning with Supreme Court guidance referenced by the High Court.

Extracted Judgment Text

Exact text extracted from official judgment records.

1 Bail Application No. 319 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 BAIL APPL. NO. 319 OF 2024 ``` ``` CRIME NO.1048/2023 OF Wadakkanchery Police Station, Thrissur ``` ## **`PETITIONER/S:`** ``` KOCHUPAUL AGED 58 YEARS S/O. OUSEPH, MEKKATTUKULAM HOUSE, KUNDANNUR DESAM, CHITTANDA VILLAGE, THRISSUR DISTRICT, PIN - 680585 BY ADV PREMCHAND M. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 319 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 319 of 2024** **-----------------------------------** ## **Dated this the 1[st] 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.1048/2023 of the Wadakkanchery Police Station, Thrissur, registered against him, for allegedly committing the offences punishable under Secs. 55(a) & 55(i) of the Kerala Abkari Act, 1077 ( for short,’Act’). The petitioner was arrested on 31.12.2023. 2. The gist of the prosecution case is that: around 16.45 hours on 31.12.2023, the accused was found in possession of 138 bottles containing 500 ML of Indian 3 Bail Application No. 319 of 2024 made foreign liquor each, i.e., a total of 69 lires. Thus, the accused has committed the above offences. 3. Heard; Sri.Premchand.M.M, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, 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 31.12.2023, which is more than a month. The investigation in the case is complete and recovery has been effected. The petitioner is the sole breadwinner of his family. The petitioner is willing to abide by any stringent condition that 4 Bail Application No. 319 of 2024 may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the petitioner was found in possession of a huge quantity of Indian made foreign liquor in violation of the provisions of the Act. The investigation in the case is in progress and the petitioner has one criminal antecedents. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 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 31.12.2023, that the recovery has been effected and the 5 Bail Application No. 319 of 2024 investigation in the case is at its fag end and prima facie I do not find any reasonable ground that the petitioner is likely to commit similar offence, I am of the view that the rigour under Sec.41A of the Act stands diluted. Hence, I am inclined to allow the 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, 6 Bail Application No. 319 of 2024 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 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 7 Bail Application No. 319 of 2024 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. (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/1.2.2024 **C.S.DIAS, JUDGE** 8 Bail Application No. 319 of 2024