Lohith K v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945** **BAIL APPL. NO. 236 OF 2024** **CRIME NO.161/2023 OF KUMBALA EXCISE RANGE OFFICE, KASARGOD** ## **PETITIONER/ACCUSED:** **LOHITH. K AGED 31 YEARS S/O. LEELAVATHI, BEERANDIKARA HOUSE, BAMBRANA, BOMBRANA VILLAGE, MANJESHWARAM TALUK, KASARAGOD, PIN - 671321** **BY ADVS. RESHMA E. ANNA SONIE ATHIRA V.M.** ## **RESPONDENT/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE EXCISE INSPECTOR (CRIME NO. 161 OF 2023 OF KUMBALA EXCISE RANGE OFFICE),KASARAGOD DISTRICT., PIN – 671321** **SMT. NEEMA T.V. SR. P.P.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.236 OF 2024** **2** ## **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 sole accused in crime No.161/2023 of the Kumbala Excise Range, Kasaragod, registered against him for allegedly committing the offence punishable under Section 58 of the Abkari Act 1 of 1077 (for short, the Act). 3. The gist of the prosecution case is that: on 06.12.2023 at 20.30 hours, the accused was found in possession of 94 tetra packs of Indian made foreign liquor each containing 180 ml on the Kanjikatta – Kotekar tar road, Manjeshwaram taluk, Kasaragod. Thus, the accused has committed the above offence. 4. Heard Smt.Reshma E., the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the **BAIL APPL.NO.236 OF 2024** **3** accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the contraband was seized from the possession of the petitioner. In fact, the contraband was seized from the house belonging to a person named Aithappa. The petitioner is a law abiding citizen. The petitioner's custodial interrogation is not necessary. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner was seen dealing with the contraband article. On seeing the Excise party, petitioner took to his heels. The petitioner's custodial interrogation is necessary. The recovery is to be effected and the investigation is only at a nascent stage. Moreover, the application is hit by the rigour under Section 41A of the Abkari Act. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner was found in possession of 94 tetra packs of Indian made foreign liquor, which was meant for sale in contravention of the **BAIL APPL.NO.236 OF 2024** **4** provisions of the Act. ## 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]** the Hon’ble Supreme Court has held as follows: 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 Cr.PC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 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 **BAIL APPL.NO.236 OF 2024** **5** 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 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 **BAIL APPL.NO.236 OF 2024** **6** 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 the legislature to a rigorous code of selfimposed limitations. 9. 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 **BAIL APPL.NO.236 OF 2024** **7** 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, particularly on comprehending the nature, gravity, and seriousness of the offence alleged against the petitioner, that the investigation in the case is only at its nascent stage, that the custodial interrogation of the petitioner is necessary, that the recovery is to be effected and also taking into account the rigour under Section 41A of the Act, I am of the definite view that the petitioner has not made out any exceptional circumstances entitling him to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant order of pre-arrest bail. Consequently, the **BAIL APPL.NO.236 OF 2024** **8** bail application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. **==> picture [34 x 12] intentionally omitted <==** **C.S.DIAS** **JUDGE** **shg**