High Court of KeralaSingle JudgeGranted pre-arrest bail

Lenin M.V. v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 2296 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2024-03-27
Court Decision / Holding
The application is allowed; the petitioner Lenin M.V. is to be released on pre-arrest bail on a bond of Rs. 50,000 with two solvent sureties of the like amount. Conditions include: (i) appearance before the Investigating Officer every Saturday for two months or till the final report; (ii) no inducement or tampering with witnesses; (iii) no commission of any offence while on bail; (iv) surrender of passport, if any (or an affidavit if none); (v) breach may lead to cancellation of bail; (vi) modifications or deletions of bail conditions may be made; (vii) the Investigating Officer may proceed with necessary recoveries. The court notes the stay order and similarity with Annexures D–F and cites Sushila Aggarwal for the permissible bail framework.
Final Disposition
Granted pre-arrest bail

Parties to the Case

Appellants / Petitioners

  • Lenin M.V.

Respondents

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

Legal Representation & Advocates

Counsels for Petitioners

  • • Nireesh Mathew

Counsels for Respondents

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

Case Synopsis & Summary

Lenin M.V., the petitioner-accused in Bail Appl. No. 2296 of 2024, challenges a crime registered as No. 16/2024 of the Aluva Excise Range Office, Ernakulam, alleging offences under Sections 57(a) and 56(b) of the Kerala Abkari Act. He sought pre-arrest bail under Section 438 CrPC, arguing that the basis of the accusation is undermined by the timing of events: samples were drawn on 08.08.2023, but chemical analysis was completed only on 29.11.2023, a delay critical in toddy cases given fermenting liquor and short shelf life. He notes that Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002 has been stayed by the Supreme Court and that SRO 145/2007 fixes the ethyl alcohol limit at 8.1%. He submits that courts have granted pre-arrest bail in identical situations (Annexures D–F), there is no immediate requirement of custodial interrogation, and he is willing to comply with stringent conditions and cooperate with investigation. The Public Prosecutor opposes bail, contending custodial interrogation is necessary under Section 41A of the Act to complete the investigation and permit recovery, and argues that release would impede the investigation and send a wrong message. The court, noting the delay in analysis and Stay order on Rule 9(2), grants pre-arrest bail, following similar orders in Annexures D–F, with conditions including regular appearance, non-interference with witnesses, prohibition on tampering, passport surrender, and a provision for cancellation of bail on breach. The court also cites Sushila Aggarwal for permissible bail conditions.

Provisions of Law Cited

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

Legal Doctrines & Maxims

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

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner submitted that although samples were drawn on 08.08.2023, the chemical analysis was conducted only on 29.11.2023, which undermines the basis of the accusation since toddy ferments and has a short shelf life. He contended Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002 has been stayed by the Supreme Court, and SRO 145/2007 fixes the 8.1% limit. He argued that the State has granted pre-arrest bail in similarly situated cases (Annexures D–F). Therefore custodial interrogation is not necessary; there is no recovery to be effected; he is willing to comply with stringent conditions and cooperate with investigators, including appearances before the IO.

Contentions of Respondents

Public Prosecutor argued custodial interrogation is essential for a full and proper investigation and to effect recoveries, citing the rigour under Section 41A of the Abkari Act. Granting pre-arrest bail would hamper the investigation, send a wrong message to society, and allow the accused to influence witnesses or tamper with evidence. The stay of Rule 9(2) cannot override the need for investigation under the established statutory framework; the charges remain and the timing of analysis plus the need to verify compliance with alcohol limits justify continued investigation.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sushila Aggarwal v. State (NCT of Delhi) and Anr.2020 (1) KHC 663PositiveCited to support court’s authority to impose bail under established jurisprudence and to permit conditions on pre-arrest bail.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Lenin M.V. v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

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. 2296 OF 2024** **CRIME NO.16/2024 OF ALUVA EXCISE RANGE OFFICE, ERNAKULAM** **PETITIONER/ACCUSED:** **LENIN M.V., AGED 38 YEARS, S/O.VASUDEVAN, MADATHUMPADI KARA, THURUTHIPURAM, 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. 2296 OF 2024** -2- ## **C.S. DIAS, J. -----------------------------------------------------B.A. No.2296 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.16/2024 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. 2296 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. 2296 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. 2296 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. 2296 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. 2296 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. 2296 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. 2296 OF 2024** -9- ## **APPENDIX OF BAIL APPL. 2296/2024** ## **PETITIONER'S ANNEXURES** **Annexure A TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.16/2024 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 NO.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.**