Johny v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-03-27
Court Decision / Holding: The bail application is allowed; the petitioner is directed to be released on pre-arrest bail on a bond of Rs. 50,000 with two solvent sureties for the like amount, subject to conditions including appearance before the Investigating Officer on Saturdays for two months, non-tampering with witnesses or evidence, abstaining from committing any offence while on bail, and surrender of passport if any.
Final Disposition: Pre-arrest bail granted; petitioner to be released on bond with conditions as set by the court.

Parties to the Case

Appellants / Petitioners

Johny

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Smt. Neema T.V., Senior Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Nireesh Mathew

Counsels for Respondents

• Smt. Neema T.V., Senior Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by the petitioner Johny, accused in crime No. 15/2024 of the Aluva Excise Range Office, Ernakulam, for offences punishable under Sections 57(a) and 56(b) of the Kerala Abkari Act. The prosecution claims that the petitioner transported toddy with a permit, but samples drew 9.7% v/v ethyl alcohol – above the 8.1% limit under SRO 145/2007 and Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002. The sampling occurred on 08.08.2023, while the chemical analysis was completed only on 29.11.2023, raising questions about the speedy investigation and the veracity of the accusation. The petitioner argued that the delay in analysis, stay on Rule 9(2) by the Supreme Court, and challenges to SRO 145/2007 render pre-arrest bail appropriate, citing similarly situated cases (Annexures D–F). The Public Prosecutor opposed bail, emphasizing need for custodial interrogation under Section 41A. The court acknowledged the delay and interim stay, noted potential similarities with earlier pre-arrest bail orders, and ultimately held that there are reasonable grounds to believe the offences may be committed but that the petitioner is not likely to repeat them, warranting pre-arrest bail on conditions. The order grants bail with bond, sureties, and standard conditions, including appearance and non-tampering obligations.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Section 57(a) and 56(b) of the Kerala Abkari Act, 1 of 1077Section 41A of the Kerala Abkari ActRule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002SRO 145/2007

Legal Doctrines & Maxims

Sushila Aggarwal v. State (NCT of Delhi) and Anr. [2020 (1) KHC 663]

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the delay between sample seizure (08.08.2023) and chemical analysis (29.11.2023) undermines the credibility of the accusation and demonstrates falsity. They rely on Stay of Rule 9(2) by the Supreme Court and challenge the validity of SRO 145/2007, arguing that similar pre-arrest bail orders have been granted in identical cases (Annexures D–F). The petitioner is willing to comply with stringent conditions and cooperates with the investigation, asserting custodial interrogation is unnecessary.

Contentions of Respondents

The State contends that custodial interrogation is essential for a full and proper investigation and that granting pre-arrest bail under Section 41A would hinder the process and possibly affect recoveries. The offences under the Abkari Act require careful scrutiny, and the stay on Rule 9(2) plus the ongoing legal challenges support the need for caution.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and Anr.	2020 (1) KHC 663	Positive	Cited to justify that investigatory powers and bail conditions may permit ongoing police activity and recoveries even where bail is granted, aligning with the protective aims of bail while preserving the investigation.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **BAIL APPL. NO. 2297 OF 2024** **CRIME NO.15/2024 OF ALUVA EXCISE RANGE OFFICE, ERNAKULAM** **PETITIONER/ACCUSED:** **JOHNY, AGED 54 YEARS, S/O.JOSE, KALATHIL HOUSE, PANJIPPALLY KARA, PUTHENVELIKKARA VILLAGE, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN-683 594.** ## **BY ADV. NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031.** **SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 2297 OF 2024** -2- ## **C.S. DIAS, J. -----------------------------------------------------B.A. No.2297 of 2024 ----------------------------------------------------Dated this the 27[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the accused in crime No.15/2024 of the Aluva Excise Range Office, Ernakulam District, registered against him for allegedly committing the offences punishable under Sections 57(a) and 56(b) of the Kerala Abkari Act 1 of 1077 (in short, 'Act'). 3. The gist of the prosecution case is that: while the accused was transporting toddy from Palakkad to Aluva on the basis of a toddy transport permit, the excise party drew samples from the said toddy and it was found that the samples contained ## **BAIL APPL. NO. 2297 OF 2024** -3- 9.7% v/v of ethyl alcohol, which is beyond the percentage of 8.1% prescribed under SRO No.145/2007. Thus, the accused has committed the above offences. 4. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner and Smt. Neema T.V., learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that, even though the samples were drawn on 08.08.2023, the chemical analysis was conducted only on 29.11.2023, which by itself proves the falsity in the accusation. Furthermore, Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002 has been stayed by the Hon'ble Supreme Court. The Government of Kerala has illegally promulgated SRO 145/2007, which is also under challenge before the Hon'ble Supreme Court. Taking into consideration all the above aspects, this ## **BAIL APPL. NO. 2297 OF 2024** -4- Court has granted orders of pre-arrest bail to the similarly situated persons as per Annexures D to F orders. The petitioner is entitled to the benefit of the said orders. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the Investigating Officer. Hence, the application may be allowed. 6. The application is vehemently opposed by the learned Public Prosecutor. She contended that the petitioner's custodial interrogation is necessary for a full and proper investigation of the crime, and recovery is to be effected. The application is hit by the rigour under Section 41A of the Act. If the petitioner is granted an order of prearrest bail, it would hamper with the investigation and also send a wrong message to the society. Hence, the application may be dismissed. **BAIL APPL. NO. 2297 OF 2024** -5- 7. On a consideration of the materials placed on record, it is evident that the samples of toddy were seized on 08.08.2023, but the Chemical Analysis was conducted only on 29.11.2023, that is after three months. It is common knowledge that toddy ferments and has only a short shelf life. 8. Indisputably, the Hon'ble Supreme Court has stayed the operation of Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002, wherein the prescribed limit of ethyl alcohol is laid down. It is thereafter that SRO 145/2007 has been promulgated fixing the prescribed limit at 8.1%. Taking into consideration all the above facts and circumstances, in cases of identical nature, by Annexures D to F orders this Court has granted orders of pre-arrest bail to persons similarly situated to the petitioner. 9. On an overall consideration of the facts, the rival submissions made across the Bar, the ## **BAIL APPL. NO. 2297 OF 2024** -6- materials placed on record and the findings rendered above, I am of the firm view that there are reasonable grounds to hold that the petitioner has committed the offences and are not likely to commit any offence, thereby diluting the rigour under Section 41A of the Act. Hence, the petitioner is entitled to an order of pre-arrest bail. In the result, the application is allowed, by directing the petitioner to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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; **BAIL APPL. NO. 2297 OF 2024** -7- (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 they are 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 filed and entertained before 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 **BAIL APPL. NO. 2297 OF 2024** -8- 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 Anr. [2020 (1) KHC 663]** . Sd/- **C.S. DIAS JUDGE** bpr **BAIL APPL. NO. 2297 OF 2024** -9- ## **APPENDIX OF BAIL APPL. 2297/2024** ## **PETITIONER'S ANNEXURES** **Annexure A TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.15/2024 OF ALUVA EXCISE RANGE.** - **Annexure B TRUE PHOTOCOPY OF THE ORDER DATED 15.05.2009 IN SLP(C)NOS.1142011434/2009 PASSED BY THE HON'BLE SUPREME COURT.** - **Annexure C TRUE PHOTOCOPY OF THE ORDER DATED 14.01.2015 IN CIVIL APPEAL NOS.40394053/2009 PASSED BY THE HON'BLE SUPREME COURT.** - **Annexure D TRUE PHOTOCOPY OF THE ORDER DATED 05.06.2018 IN B.A.NO.3566/2018 PASSED BY THIS HON'BLE COURT.** - **Annexure E TRUE PHOTOCOPY OF THE ORDER DATED 04.09.2018 IN B.A.NO.5548/2018 PASSED BY THIS HON'BLE COURT.** **Annexure F TRUE PHOTOCOPY OF THE ORDER DATED 11.03.2024 IN B.A.NO.1661/2024 PASSED BY THIS HON'BLE COURT.**