Kajahussain v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 4[TH] DAY OF MAY 2022 / 14TH VAISAKHA, 1944 BAIL APPL. NO. 3276 OF 2022 CRIME NO.38/2022 OF Kuzhalmannam Excise Range Office, ``` ## **`Palakkad`** ## **`PETITIONER/S:`** ``` KAJAHUSSAIN AGED 34 YEARS SON OF KIDHER, PALLARIKKAL, KUTHANUR, ALATHUR, PALAKKAD., PIN - 678721 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR SMT. SREEJA V. SR. GP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- BA No. 3276 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== B.A.No. 3276 of 2022 ============================================================= Dated this the 4[th ] day of May, 2022 ## **ORDER** This Bail Application is filed under Section 438 of Criminal Procedure Code. 2. The petitioner is the accused in Crime No.38 of 2022 of Kuzhalmannam Excise Range. The above case is registered alleging offences punishable under Section 55(i) and 67B of the Abkari Act. 3.The prosecution case is that on 15.04.2022 at 12.30 pm, Palakkad Excise Enforcement and Anti Narcotic Special Squad Prevention Officer and team seized 9.1 litres of Indian Made from Tata Sumo car Foreign Liquor bearing Reg.No.KL-49A/5828 meant for sale and thereby the petitioner committed the offences. -3- BA No. 3276 of 2022 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that even if the entire allegations are accepted, no offences are made out. The counsel submitted that at the maximum, the allegation will amounts to the possession of Indian Made Foreign Liquor in excess of the prescribed quantity and the same will not attract the offences under Section 55(i) and 67B of the Abkari Act. It is submitted that there is no criminal antecedents to the petitioner. The public prosecutor seriously opposed the bail application. But the public prosecutor concede that there is no criminal antecedents to the petitioner. The allegation against the petitioner is that the petitioner was found in possession of Indian Made Foreign Liquor. Whether the offences under Section 55(i) and 67B of the Abkari Act is made out in the facts and circumstances of the case is a matter to be decided by the Trial Court. But considering the facts and circumstances of the -4- BA No. 3276 of 2022 case, I think this bail application can be allowed with stringent conditions. 5. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same in as much as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 6. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353)** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during -5- BA No. 3276 of 2022 investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” 7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: -6- BA No. 3276 of 2022 1. The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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. 4. Petitioner shall not leave India without permission of the jurisdictional Court. 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he suspected. -7- BA No. 3276 of 2022 6. Petitioner shall appear before the investigating officer on all Mondays, Wednesdays and Fridays at 10 am till final report is filed. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -8- BA No. 3276 of 2022 ## **`APPENDIX OF BAIL APPL. 3276/2022`** ``` PETITIONER ANNEXURES Annexure1TYPED COPY OF THE MAHAZAR IN CRIME.NO.38/2022 OF KUZHALMANNAM EXCISE RANGE OFFICE, PALAKKAD ```