Lalu v. State of Kerala

## **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. 1010 OF 2024** **CRIME NO.1204/2023 OF ALOOR POLICE STATION, THRISSUR** ## **PETITIONER/1ST ACCUSED:** **LALU, AGED 54 YEARS S/O VELAYUDHAN, PEENIKKAL HOUSE, VELLAMCHIRA, PORUNNUKUNNU DESOM, ALOOR VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680697** **BY ADV T.N.MANOJ** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP 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:** **BAIL APPL. NO.1010 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the first accused in Crime No.1204/2023 of the Aloor Police Station, Thrissur, registered against the accused (2 in number) for allegedly committing the offences punishable under Sections 55(a), 55(h), 55(i) and 58 of the Kerala Abkari Act 1 of 1077 (for short, the Act). The petitioner was arrested on 27.12.2023. 2. The crux of the prosecution case is that: on 26.12.2023 at around 11.36 hours, the Sub Inspector of Police, Mala Police Station, who is also in charge of the Aloor Police Station, conducted a search in Room Nos.21/715A and 21/715B which stood in the name of the first accused and they seized 2211 litres of spirit, 3816 litres of brandy and 5760 litres of rum which were stored in violation of the provisions of the Act. Thus, the accused have committed the **BAIL APPL. NO.1010 OF 2024** **3** above offences. 3. Heard Sri.T.N.Manoj, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is residing at a far away place from the scene of occurrence. In fact, the petitioner had leased the property in question by Annexure A Agreement of Lease on 18.05.2023 to one Santhosh, who was conducting a poultry farm in the said premises. About six months back, the said tenant had vacated the premises. Thereafter, the petitioner leased the premises, by Annexure B lease agreement, on 08.11.2023 to one Laurence Mathew. The petitioner is totally unaware of the business that is being conduced in his property. It is only when the petitioner was summoned by the Investigating Officer that he became aware of the liquor that was allegedly seized from his property. The petitioner was arrested and was remanded to **BAIL APPL. NO.1010 OF 2024** **4** judicial custody on 27.12.2023. The custodial interrogation of the petitioner is already complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Moreover, the Investigating Officer has not filed the final report even after the expiry of the statutory period prescribed under the proviso to sub-section (ii) of Section 167 of the Code of Criminal Procedure. Hence, the petitioner's indefeasible right to be released on compulsive bail has accrued. Therefore, the bail application may be allowed. 5. The learned Public Prosecutor opposed the application. He contended that the investigation in the case is still in progress because there is a huge quantity of contraband article involved in the crime. He made available the report of the Investigating Officer which shows that the investigation is still in progress. Moreover, the petitioner is involved in four other crimes for allegedly committing the offences punishable under the Indian Penal Code. Nonetheless, he conceded to the fact that the investigation in **BAIL APPL. NO.1010 OF 2024** **5** the case has not been completed and the final report has not been laid. 6. The prosecution case is that the Investigating Officer seized 2211 litres of spirit, 3816 litres of brandy and 5760 litres of rum from the premises belonging to the petitioner. It is also alleged that the another accused is also involved in the crime. The records reveal that the petitioner is also involved in four other crimes for allegedly committing the offences under the Indian Penal Code. The fact remains that, the petitioner was arrested and was remanded to judicial custody on 27.12.2023. Yet, the final report has not been laid till date. 7. Section 167 of the Code reads as follows: **167. Procedure when investigation cannot be completed in twenty-four hours.** —(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- **BAIL APPL. NO.1010 OF 2024** **6** inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: The offences alleged against the petitioner are all punishable with imprisonment for a period of less than ten years. Therefore, the right to be released on statutory bail has accrued on the 61[st] day. Admittedly, today is the 61[st] day, after the remand of the petitioner. 8. The Constitution Bench of the Honourable Supreme Court in **Sanjay Dutt v. State through C.B.I., Bombay** [(1994) 5 SCC 410] after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is **BAIL APPL. NO.1010 OF 2024** **7** ## relevant for this case, which is reproduced below: "53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." 9. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v.State through C.B.I., Bombay (supra). In paragraph 13 ## (3) it was opined thus: " 13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail **BAIL APPL. NO.1010 OF 2024** **8** on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 10. In the instant case, as the petitioner was remanded to judicial custody on 27.12.2023 and the Final Report has not been laid till date. Therefore, there can be no doubt that the petitioner's indefeasible right to be released on statutory bail has arisen today. Hence, I am constrained to allow the bail application, notwithstanding the rigour under Section 41A of the Act and the huge quantity of the contraband that is involved in the case. This is the classic case which exhibits the laxity on the part of the Investigating Officer, in not making an attempt to complete the investigation within the prescribed time period. 11. In the result, the application is allowed, by directing the petitioner to be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court **BAIL APPL. NO.1010 OF 2024** **9** having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer as and when required; - (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 them 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 he is on bail; - (iv) 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; - (v) Applications for deletion/modification of the bail conditions shall also be filed and entertained by the court below. **BAIL APPL. NO.1010 OF 2024** **10** The Registry shall forward a copy of this order to the State Police Chief for information. **Sd/-** **C.S.DIAS** **JUDGE** **shg**