Chandran A.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 BAIL APPL. NO. 11564 OF 2023 ``` ``` CRIME NO.117/2023 OF Thalassery Excise Range Office, Kannur AGAINST THE ORDER IN CRMC 2569/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY ``` ## **`PETITIONER/ACCUSED:`** ``` CHANDRAN A.K, AGED 54 YEARS S/O KANARAN, AANAKULANGARA HOUSE, AZHIYOOR AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE, PIN - 673309 ``` ``` BY ADV ALEX.M.SCARIA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, (EXCISE RANGE INSPECTOR, THALASSERY), 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 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No. 11564 of 2023 2 ## **Dated this the 12[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.117/2023 registered by the Excise Range Office, Thalassery, Kannur, for allegedly committing the offences punishable under Sections 55(a) and 58 of the Kerala Abkari Act. The petitioner was arrested on 13.12.2023. 2. The gist of the prosecution case is that: on 13.12.2023 at about 12 p.m, the accused was found transporting 773 liters of Indian Made Foreign Liquor which was meant for sale in the State of Puducherry, without any license or permission. Thus, the accused has committed the above offences. 3. Heard Sri.. Alex M. Scaria, learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor appearing for B.A No. 11564 of 2023 3 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 was only the driver of the vehicle in which the contraband was allegedly transported. As per the practice that has been followed in the locality, the petitioner had all the requisite license and permissions to transport the liquor from Mahe to different Bars in Palloor which are both within the territorial jurisdiction of the Union territory of Puducherry. It was only when the vehicle passed through a small stretch—400 meters— the state of Kerala that the Investigating Officer intercepted the vehicle and arrested the petitioner. The petitioner was always under the bona fide belief that there was no separate permission required for passing through the said stretch in State of Kerala. The petitioner is the sole breadwinner B.A No. 11564 of 2023 4 of the family. The petitioner has no other criminal antecedents. The petitioner has been languishing in jail for more than 61 days. Notwithstanding the other contentions raised in the bail application, the petitioner is entitled to be released on statutory bail since the offence alleged against him are all punishable for a period of less than ten years. Hence, the bail application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the Investigating Officer has filed an affidavit on 30.01.2024, inter alia, stating that on 13.12.2023 while conducting the patrolling duty, the Circle Inspector received a phone message that the liquor was being illegally transported in a vehicle bearing registration No.PY- PY-3A-8921, which was passing near New Mahi. Accordingly, the vehicle was intercepted, and 83 cases of liquor were found in the goods autorikshow. On questioning the driver of the B.A No. 11564 of 2023 5 vehicle/ the petitioner, he stated that the liquor was being transferred from the godown of the South Indian Liquors of Mahe. On verification of the permit, it was seen that the license had expired on 08.12.2023. Therefore, the petitioner did not have a valid permit to transport the liquor as per the provisions of the Abkari Act and Rule 3 of the Kerala Liquor Transit Rules, 1975. The allegations in the bail application with respect to Annexure A4 letter addressed to the Deputy Commissioner (Excise), Mahe, is untenable. The liquor trade can be conducted in the State of Kerala only as per the provisions of the Kerala Abkari Act. There are no existing orders or rules in vogue as alleged by the petitioner. On an earlier occasions also, similar consignments have been intercepted and seized. Hence, the bail application may be dismissed. 6. The petitioner was arrested on 13.12.2023 and was remanded to judicial custody on the same day. The B.A No. 11564 of 2023 6 offences alleged against the petitioner are punishable for a period of less than ten years. Indisputably, the final report has not been laid before the Jurisdictional Court till date. 7. Section 167 of the Code of the Criminal Criminal Procedure, 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 wellfounded, 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 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: B.A No. 11564 of 2023 7 ## Provided that— [(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 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.” B.A No. 11564 of 2023 8 8. The Constitution Bench of the Honourable Supreme Court in **Sanjay Dutt v.State through C.B.I., Bombay** [(1994) 5 SCC 410] after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is relevant for this case, which is reproduced below: "53.(2)(b) The "indefeasible right" of the accused to be 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 B.A No. 11564 of 2023 9 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 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 B.A No. 11564 of 2023 10 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, the petitioner was remanded to judicial custody on 13.12.2023. Indisputably, the investigation has not been completed, and the final report has not been laid. Therefore, 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. 11. 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 shall be subject to the following conditions: B.A No. 11564 of 2023 11 - (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 them 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) 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; B.A No. 11564 of 2023 12 (v) Applications for deletion/modification of the bail conditions shall also be filed and entertained by the court below. - (vi) 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/- **C.S.DIAS, JUDGE** mtk/12.02.24