# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
BAIL APPL. NO. 4800 OF 2024
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CRIME NO.14/2024 OF SREEKANDAPURAM EXCISE RANGE OFFICE, KANNUR
PETITIONER/ACCUSED:
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LAKSHMANAN.P.P,
AGED 49 YEARS
S/O. GOVINDAN, PAYYAN PUTHAN VEETTIL HOUSE,CHALIL
MOOLA, CHENGALAYI, CHENGALAYI. P.O., KANNUR
DISTRICT, PIN - 670632
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BY ADVS.
V.A.SATHEESH
V.T.MADHAVANUNNI
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## **`RESPONDENT:`**
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN – 682031
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SR.PUBLIC PROSECUTOR SRI. C.S. HRITHWIK
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024,THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
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**B.A. No.4800 of 2024** **`2`**
**Dated this the 2[nd] day of August, 2024**
## **O R D E R**
The application is filed under Section 439 of the Code of Criminal Procedure, 1973, (in short, ‘Code’) by the sole accused in Crime No. 14/2024 of the Sreekandapuram Excise Range Office, Kannur, which is registered against him for allegedly committing the offence punishable under Section 55 (i) of the Kerala Abkari Act,1 of 1077 ( in short, Act). The petitioner was arrested and remanded to on judicial custody 18.05.2024.
2. The prosecution case, in brief, is that; on 12.02.2024, at around 11.30 hours, the accused was found near the Service Co-operative Development Society, Cherankunnu by the Excise party. On conducting a search on the accused, 5 litres of Indian made Foreign Liquour was seized from his possession.
**B.A. No.4800 of 2024** **`3`**
The accused was arrested on the spot with the contraband article. Thus, the accused has committed the above offence.
3. Heard; Sri. V.T. Madhavanunni, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime by the Investigating Officer due to his previous animosity. The petitioner has been in judicial custody for the last 75 days, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed.
5. The learned Public Prosecutor vehemently opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that
**B.A. No.4800 of 2024** **`4`**
the petitioner is an inveterate offender. The petitioner is involved in ten other crimes of a similar nature of the very same Excise Range office. Therefore, the application is hit by the rigour under Section 41A of the Act. If the petitioner is enlarged on bail, there is no doubt that the petitioner would indulge in committing a similar offence. Hence, the application may be dismissed.
6. In the light of the submission made by the learned Public Prosecutor, this Court had called for a report from the Assistant Sessions Judge, Kannur, to ascertain the status and reasonable time period required by the Trial Court to consider and dispose of S.C. No.398/2023, which arises out of the present crime. The Trial Court was also directed to report the status of the earlier crimes registered against the petitioner.
7. Pursuant to the said order, the Trial Court, by communication dated 30.07.2024, has informed this Court that S.C. No.398/2023 stands posted to 23.08.2024
**B.A. No.4800 of 2024** **`5`**
for framing of charge. But, the chemical analysis report has not been received till date. It was also reported that the petitioner had pleaded guilty in Crime Nos.95/2017, 111/2020, 130/2021, 62/2023, 99/2017, 38/2019, 85/2019 and 147/2022 and was sentenced to payment of fine. Whereas there is another crime pending trial against the petitioner as Crime No.99/2023 before the Judicial First Class Magistrate Court, Taliparamba.
8. On an evaluation of the report of the Trial Court, it is evident that the petitioner is a person with criminal antecedents.
## 9. Section 41A of the Kerala 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.
**B.A. No.4800 of 2024** **`6`**
(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]
10. A plain reading of the above provision substantiates that, if the Public Prosecutor opposes the bail application, then the Court has to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offence and that he is not likely to commit any offence while he is on bail.
11. While interpreting an analogous provision under Section 37 of the NDPS Act, the Honourable Supreme Court in **Dheeraj Kumar Shukla v. The State of Uttar Pradesh [2023 KHC 6545]** has categorically held that an accused can qualify the second limb of Section 37 of the NDPS Act, only if he does not have any criminal antecedents. In case, the accused has any criminal antecedents, then he would fail to qualify the second limb of Section 37 of the NDPS Act. I am of the firm view that the very same interpretation is applicable to Section 41A of the Act.
**B.A. No.4800 of 2024** **`7`**
12. Admittedly, the petitioner is a person, who has been convicted and sentenced to pay fine in eight other cases, and he is facing trial in another crime of the same nature. Therefore, the petitioner has failed to dilute the second limb of the Section 41 A(1) (b) (ii) of the Act. Moreover, the materials placed on record prima facie show the petitioner’s involvement in the crime. Thus, this Court cannot assume that there are no reasonable grounds to hold that the petitioner is involved in the case.
On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and the findings rendered above, especially on comprehending the nature, seriousness and gravity of the accusations attributed against the petitioner, the prima facie materials that substantiate the petitioner’s involvement in the crime, that the petitioner is a habitual offender and the potential severity of the punishment that is likely to be imposed on the petitioner,
**B.A. No.4800 of 2024** **`8`**
I am not satisfied that there are reasonable grounds to hold that the petitioner is not guilty of the offence alleged against him and that he is not likely to commit a similar offence if he is enlarged on bail. The petitioner has not made out any valid ground to dilute the rigour under Section 41A of the Act. Therefore, I am of the firm view that the petitioner would have to face custodial trial. The application is meritless and is only to be dismissed.
Resultantly, the application is dismissed.
**SD/-**
**C.S.DIAS, JUDGE**
rmm/2/8/2024
