Krishnakumar v. State of Kerala and Excise Inspector, Karthikapally Excise Range, Alappuzha

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 BAIL APPL. NO. 8419 OF 2023 ``` ``` CRIME NO.110/2023 OF ALAPPUZHA EXCISE RANGE OFFICE, ALAPPUZHA ``` ## **`PETITIONER/ACCUSED:`** ``` KRISHNAKUMAR AGED 56 YEARS, S/P THANKAPPAN PARVATHYNILAYAM HOUSE, AKAMKUDI MURI, PALLIPAD VILLAGE, KARTHIKAPPALLY TALUK, PALLIPAD P.O., PIN - 690512 ``` ``` BY ADVS. S.GOKUL BABU M.ANIL PRASAD PARVATHY NAIR GAADHA SURESH ARUN M.V. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM 682031., PIN - 682031 ``` - **`2 EXCISE INSPECTOR KARTHIKAPALLY EXCISE RANGE, ALAPPUZHA,PINCODE:690516., PIN - 690516`** ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.8419 of 2023** ``` 2 ``` ## **Dated this the 28[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.110/2023 of the Karthikapally Excise Range, Thrissur, registered against him for allegedly committing the offences punishable under Sections 58 and 55 (i) of the Kerala Abkari Act 1 of 1077. 3. The crux of the prosecution case is that; on 15.8.2023, at around 6 p.m., on the basis of a secret information, the Excise party searched the house of the accused and seized 31 bottles of Indian Made Foreign **B.A. NO.8419 of 2023** ``` 3 ``` Liquor (IMFL), each containing 750 ml, meant for sale in the State of Karnataka. Thus, the accused has committed the above offence. 4. Heard Sri. S.Gokul Babu, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The petitioner is serving in Border Security Force (BSF) as an Assistant Sub Inspector at BSF station, Thiruvananthapuram. The officials of the BSF are allotted a monthly quota of 8 bottles of IMFL from their canteen. The petitioner was engaged in Dar run duty and had to travel between Thiruvananthapuram and Banglore. The liquor is booked through an online portal named Centralized Liquor Management System. The petitioner had purchased his **B.A. NO.8419 of 2023** ``` 4 ``` quota from the canteen at Bangalore. From the month of March, 2023, the petitioner has lowered his consumption of alcohol due to an ailment. Therefore, he had additional liquor bottles in his house. On the request of his retired colleague named Kesavankutty, the petitioner had availed his quota also and kept it in his house. It was at that time, the Excise party conducted the search and seized the IMFL bottles from the petitioner’s residence. Although the petitioner had approached the court of Session with a similar application, the same was dismissed by Annexure 6 order. The petitioner has not committed any offence as alleged by the prosecution. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. The petitioner is ready to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. ## **B.A. NO.8419 of 2023** ``` 5 ``` 6. The learned Public Prosecutor seriously opposed the application. He contended that a huge quantity of IMFL i.e., 23.25 litres was seized from the inbuilt drawer of the cot of the petitioner in his house at Pallipad Village, Karthikappalli. The IMFL was meant for sale only in the State of Karnataka. The investigation in the case is at its nascent stage. The petitioner’s wife and child have confessed that the stored IMFL was meant for sale. The application is hit by the rigour under Section 41 A of the Abkari Act. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that on 15.8.2023, the Excise party searched the house of the petitioner, and seized 23.25 litres of IMFL, which was meant for **B.A. NO.8419 of 2023** ``` 6 ``` ## sale in the State of Karnataka. ## 8. Section 41 A of the Abkari Act reads as follows:- [41A. Offences to be cognizable and non-bailable. - (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 this 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 1994) or any other law for the time being in force on granting of bail] ## 9. The above provision explicitly postulates that if ``` 7 ``` ## **B.A. NO.8419 of 2023** the Public Prosecutor opposes an application, then this Court has to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. 10. On a consideration of the accusations levelled against the petitioner, especially the fact that the contraband was meant only for sale in the State of Karnataka, that 23.25 litres of IMFL were seized from the drawer of the cot from the petitioner’s house, which is much higher than the permitted monthly allotted quota of the petitioner, Annexure A3 movement order undoubtedly restricts the petitioner from consuming any liquor while he is enroute, and there is no cogent justification for the petitioner to have transported the liquor from Karnataka to Kerala and why he had procured the IMFL for his friend from Karnataka, when ``` 8 ``` ## **B.A. NO.8419 of 2023** the procurement is being done online, I am prima facie satisfied that the petitioner has committed the above offence. 11. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very **B.A. NO.8419 of 2023** ``` 9 ``` carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by ``` 10 ``` ## **B.A. NO.8419 of 2023** the legislature to a rigorous code of self-imposed limitations. ## 12. 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 that the applicant has been falsely enroped in the crime and his liberty is being misused. 13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, the findings rendered above, and on comprehending the seriousness, gravity and nature of the accusation levelled against the petitioner, ``` 11 ``` ## **B.A. NO.8419 of 2023** that the investigation in the case is at its preliminary stage, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not convinced that the petitioner has diluted the rigour under Section 41A of the Abkari Act, to hold that he has not committed the offences and is not likely to commit the offences in future. The petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Reultantly, the bail application is dismissed. ``` SD/- ``` ## **C.S.DIAS, JUDGE** ``` rmm/28/2/2024 ```