Chandran K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 4877 OF 2024 ``` ``` CRIME NO.185/2023 OF Kasaragod Excise Range Office, Kasargod ``` ``` ------------ ``` ## **`PETITIONER/SECOND ACCUSED :-`** ``` CHANDRAN K, AGED 48 YEARS S/O.KUMARAN, RESIDING AT PARVATHI NILAYAM, KARMAR, BELA VILLAGE, MANYA, ULLODI P.O., KASARAGOD DISTRICT, PIN - 671 321 ``` ``` BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 26th day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short,'Code’), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.185/2023 of the Excise Range Office, Kasaragod, which is registered against the accused, for allegedly committing the offence punishable under Section 58 of the Kerala Abkari Act, 1 of 1077. 3. The gist of the prosecution allegation is that; on 20.12.2023, at around 07:15 hrs., the excise party found 207.36 litres of Indian Made Foreign Liquor in a house bearing No.XV/319 of Badiadka Grama Panchayat, which was meant for sale. The first accused was arrested on the spot with the contraband article. During the course of investigation and the interrogation of the first accused, he stated that the house was taken on a monthly rent of ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 3 :- ``` Rs.3,000/- by the second accused. Thus, the accused have committed the above offence. 4. Heard; Sri.T.Madhu, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioner had taken the house on rent from where the contraband was allegedly seized. The petitioner has been implicated in the crime solely on the basis of the confession statement made by the first accused, which is inadmissible in law. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 4 :- ``` incriminating materials to substantiate that it was the petitioner who took the house on rent for Rs.3,000/- from where the contraband was allegedly seized from the conscious possession of the first accused. In addition to the materials, the first accused has categorically stated that it was the petitioner who took the house on rent. Since the offence alleged against the petitioner is under the Kerala Abkari Act, the rigour under Section 41A of the Act applies to the facts of the case. The petitioner's custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the crime. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. Hence, the application may be dismissed. 7. The prosecution case is that; the excise party had seized 207.36 litres of Indian Made Foreign Liquor from the conscious possession of the first accused who was in the house which was taken on rent by the petitioner on a ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 5 :- ``` monthly rent of Rs.3,000/-. Whether or not the house was taken on rent by the petitioner is a matter that is to be investigated and decided at the time of trial. Indisputably, the learned Public Prosecutor opposed the application and there are incriminating materials to substantiate the petitioner's involvement in the crime. Therefore, the rigour under Section 41A of the Act applies to the facts of the case. 8. In _**Srikant Upadhyay v. State of Bihar**_ [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 6 :- ``` xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx” 9. In _**Jai Prakash Singh v. State of Bihar and another**_ [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 7 :- ``` that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that there are _prima facie_ materials to substantiate the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary, and further the petitioner's similar application has already been dismissed by the Court of Session as per Annexure A2 order, I am not satisfied that the petitioner has made out any valid ground to dilute the rigour under Section 41A of the Act and is entitled to an order of pre-arrest bail. The application is meritless and is only to be dismissed. Resultantly, the bail application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/27.7.2024 ``` BAIL APPL. NO. 4877 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 4877/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure -A1THE TRUE COPY OF THE REPORT DATED 20/12/2023 FILED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE KASARAGOD BEFORE THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT - II, KASARAGOD IN CRIME NO.185/2023 OF THE EXCISE RANGE KASARAGOD ``` ``` Annexure -A2THE TRUE COPY OF THE ORDER DATED 27/1/2024 IN CRL.M.C.NO.67/2024 IN THE FILES OF THE SESSION'S COURT, KASARAGOD ```