Biju T.M. v. State of Kerala and Excise Inspector, Ranni

## **'C'R'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **Bail Appl..No.532 OF 2021** ## **CRIME NO.95/2020 OF Ranny Excise Range Office , Pathanamthitta** ## **PETITIONER/S:** **BIJU T.M AGED 33 YEARS S.O. MOHANAN NAIR, THUNDIYIL HOUSE, KOTTATHUR MURI, AIYROOR VILLAGE , AIYROOR P.O 689611** ## **BY ADV. SRI.V.SETHUNATH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA**| ||**682031**| |**2**|**EXCISE INSPECTOR**| ||**EXCISE RANGE OFFICE, RANNI**| ||**689672**| ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SMT.V.SREEJA-PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON 16.03.2021 PASSED THE FOLLOWING:** BA 532/2021 2 ## **'C'R'** ## **O R D E R** **Dated this the 16th day of March 2021** Application for anticipatory bail under Section 438 of the Cr.P.C. 2. The applicant is the sole accused in Crime No.95/2020 of Ranni Excise Range Office for having allegedly committed an offence punishable under Sections 55(i) and 67B of the Kerala Abkari Act. 3. The prosecution case, in brief, is that on 01/11/2020 at about 5:30 PM, the Excise officers on patrol duty intercepted the applicant and found him involved in the sale of some liquor to another person for consideration. On BA 532/2021 3 seeing the Excise party, the applicant took to his heels. Inspecting the autorickshaw, 3.3 litres of Indian Made Foreign Liquor was recovered from the autorickshaw bearing registration No. KL-27-9022. The contraband was seized and the crime registered. The applicant could not be apprehended. The applicant apprehends arrest and hence approaches this Court for pre-arrest bail. The applicant states that the allegations are not true and that he has been falsely implicated. 4. Heard the learned counsel for the applicant Sri.V Sethunath and the learned Public Prosecutor, Smt. V. Sreeja. Records perused. 5. The learned Prosecutor submits that in view of the BA 532/2021 4 embargo under Section 41A of the Abkari Act, the applicant is not entitled to the exceptional remedy of anticipatory bail. It is submitted that the twin conditions required to be satisfied by the accused have not been satisfied. There are no reasonable grounds to believe that the applicant is not guilty or that he is not likely to commit offences of similar nature if released on bail. The bail application is vehemently opposed by the learned Prosecutor relying upon the decision of the Honourable Supreme Court in Muraleedharan vs. State of Kerala [AIR 2001 SC 1699] . Per contra, the learned counsel appearing for the applicant submits that there is no declaration of law made in the aforesaid decision. Anticipatory bail granted to the accused by the Sessions Court in an abkari case involving the huge BA 532/2021 5 quantity of liquor was challenged by the State before the Supreme Court and it is under such circumstances that the order of the Sessions Court was reversed and the bail granted set aside. The situation in this case is not comparable to the facts in the above-cited decision. It is also submitted by the learned counsel that Section 41A of the Abkari Act does not curtail the powers of this Court under Section 438 or 439 of the Cr.P.C. It is also pointed out that the aforesaid decision is per incuriam in view of the Three Bench decision of the Supreme Court in Balchand Jain v. State of M.P. [AIR 1977 SC 366] . 6. After having heard the submissions made on both sides, it will have to be considered whether the argument of BA 532/2021 6 the learned counsel appearing for the applicant can be accepted in his favour holding the decision in Muraleedharan (supra) per incuriam. 7. The learned counsel appearing for the applicant submits that in Balchand Jain (supra) the Supreme Court was considering the point whether the provisions of Rule 184 of the Defence and Internal Security of India Rules, 1971 would override the provisions under Section 438 Cr.P.C. It was held that the Legislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes so that the two may work and stand together. If the intention of the provisions under Rule 184 work to override the provisions of Section 438 of the Code, then the legislature should have BA 532/2021 7 expressly stated so in many words that the provisions of Section 438 of the Code shall not apply to offences as contemplated by Rule 184 of the aforesaid Rules. There are no such provisions in the Code and hence under the circumstances, the two statutes will have to stand together and the Court will have to bring about a harmonious construction. The learned counsel also points out that the embargo under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act includes an overriding provision with respect to the powers under Section 438 of the Code. 8. A reading of Section 41A of the Abkari Act would be profitable. It reads thus: " The offences to be cognizable and non bailable. BA 532/2021 8 (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 the Abkari 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 limitations under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), or any other law for the time being in force on granting of bail.". BA 532/2021 9 9. S.41A of the Abkari Act is in pari materia with S.37 of the N.D.P.S. Act. So before granting bail to the accused persons, the Court ought to consider the mandate contained in S.41A of the Abkari Act. The learned counsel appearing for the applicant submits that the High Court has untrammelled powers to grant bail and inasmuch as the provisions of S.41A of the Abkari Act does not override the provisions of S.438 Cr.P.C specifically as in the provisions under the SC-ST (Prevention of Atrocities) Act. 10. It is pertinent to note that Section 41A of the Abkari Act also starts with the non-obstante clause limiting the scope of the provisions of the Cr.P.C. in the matter of granting bail and as such the High Court has no untrammelled powers to BA 532/2021 10 grant bail. Section 37 of the NDPS Act also has similar wordings as in the Abkari Act. 11. In Narcotics Control Bureau v. Kishan Lal. [1991 KHC 152 : AIR 1991 SC 558] , the Supreme Court held thus: “6. S.37 as amended starts with a nonobstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and Psychotropic substances. That being the underlying object and particularly when the provisions of S.37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail BA 532/2021 11 under S.439 Cr.P.C. Are not subject to the limitation mentioned under S.37 of the NDPS Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly, it is intended to restrict the powers to grant bail. In case of inconsistency between S.439 Cr.P.C. and S.37 of the NDPS Act, S.37 prevails.” ## In Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat [1988 (2) SCC 271)] a case which arose under the TADA Act, after discussing Balchand (supra) it was held as under: "Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary BA 532/2021 12 implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under S.438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under S.439 or under S.482 of the Code." The Supreme Court had considered the decision in Balchand Jain (supra) and the decision in Usmanbhai Dawoodbhai Memon and Others (supra) and after a detailed discussion of these two decisions, the provisions of Rule 184 of the Defence and Internal Security of India Rules, 1971 and the provisions of TADA, held thus: “From the above discussion it emerges that in Usmanbhai's case ((1988) 2 SCC 271), the Supreme Court did not express anything BA 532/2021 13 contrary to what has been observed in Balchand Jain's case (1977) 2 SCR 52) and on the other hand at more than one place observed that such enactments should prevail over the general enactments and the nonobstante clause must be given its due importance. For all the aforesaid reasons we hold that the powers of the High Court to grant bail under S.439 are subject to the limitations contained in the amended S.37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail.” 12. In Union of India v. Ram Samujh and Another [1999 KHC 1542: 1999 (9) SCC 429] , the Supreme Court considering the embargo under Section 37 of the NDPS Act, held thus: “5. The jurisdiction of the court to grant bail is circumscribed by the provision of S.37 of the NDPS Act. It can be granted in a case where there are reasonable grounds for believing BA 532/2021 14 that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed.” A Division Bench of this Court in Asokan v. State of Kerala [1998 KHC 64 DB] upholding the validity of S.41A of the Abkari Act held that “we do not find any merit in the various contentions advanced by the petitioners challenging the validity of S.41 and S.41A of the Amendment Act. They are constitutionally valid.” 13. Considering the catena of decisions referred to above, it has to be held that granting of bail to an accused under the Abkari Act is also circumscribed by the provisions under Section 41A of the Abkari Act and unless there are BA 532/2021 15 reasonable grounds to believe that the applicant is not guilty and that he is not likely to commit any offence while on bail, he is not entitled to be released on bail. The argument of the learned counsel for the applicant that the powers of the High Court under Sections 438 and 439 of the Code are untrammelled by the restrictions imposed under S.41A of the Abkari Act and the decision of the Supreme Court in Muraleedharan (supra) is per in curium, is not acceptable for the reasons stated above. 14. In the instant case, the applicant was found engaged in the sale of Indian Made Foreign Liquor and while he was about to be apprehended, he fled away. He is, therefore, not entitled to the discretionary relief of anticipatory bail. There BA 532/2021 16 are no reasonable grounds to believe that he is not guilty of the offence alleged against, neither is there an assurance that he will not commit any offence while on bail. The application for anticipatory bail is without any merits and the same is, therefore, dismissed. **Sd/-** **ASHOK MENON JUDGE** jg