Narayanan M v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 793 OF 2024 ``` ``` CRIME NO.14/2024 OF KASARAGOD EXCISE RANGE OFFICE, KASARGOD ``` ``` AGAINST THE ORDER IN CRMP 119/2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD ``` ## `PETITIONER:` ``` NARAYANAN M, AGED 58 YEARS S/O MALINGA PATTALI, SOORAMBAYAL DESOM, PERAL,KANNUR VILLAGE, MANJESWARAM TALUK, KASRGOD (DIST.), KERALA, PIN – 671121 ``` ``` BY ADVS.ANIL K.MUHAMED KRISHNAKUMAR G. AJIN SALAM ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.793/2024 -:2:- Dated this the 23[rd] day of February,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.14/2024 of the Excise Range Office, Kasaragod, registered against him, for allegedly committing the offences under Sections 58 & 67B of the Kerala Abkari Act,1 of 1077(in short, ‘Act’). The petitioner was arrested on 17.01.2024. 2. The essence of the prosecution case is that: on 16.01.2024, at around 10.35 p.m., the accused was found in possession and was transporting 129.60 litres of Indian Made Foreign Liquor (IMFL), which was meant exclusively for sale in the State of Karnataka, in his auto rickshaw bearing No.KL-14R-2302. The accused was arrested then and there from the spot with the contraband article. Thus, the accused has B.A.No.793/2024 -:3:- committed the above offences. 3. Heard; Sri. Anil K.Muhamed, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. He has been in judicial custody since 17.01.2024. The investigation in the case is practically complete and the recovery has been effected. The petitioner’s further detention is unnecessary. The petitioner is willing to co-operate with the Investigating Officer and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail B.A.No.793/2024 -:4:- objection report, inter-alia, contending that the investigation in the case is only at its preliminary stage. The petitioner was found in possession of 129.60 litres of IMFL meant for sale in the State of Karnataka and Rs.6,000/-. If the petitioner is let off on bail, there is every likelihood of him committing a similar offence and also interfering with the investigation. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner was found in possession of 129.60 litres of IMFL, which was meant for sale in the State of Karnataka. The accused was arrested then and there on the spot with the contraband article. Section 41A of the Kerala Abkari Act,1 of 1077 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.A.No.793/2024 -:5:- (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.” 7. On an analysis of the materials placed on record, it is too premature for this Court to hold that there are no reasonable grounds to hold that the petitioner has not committed the offence and is not likely to commit the offence in the future. 8. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the B.A.No.793/2024 -:6:- ## Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: - (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; - (ii) nature and gravity of the accusation: - (iii) severity of the punishment in the event of conviction; - (iv) danger of the accused absconding or fleeing, if released on bail; - (v) character, behaviour, means, position and standing of the accused; - (vi) likelihood of the offence being repeated; - (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” 9. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, B.A.No.793/2024 -:7:- the severity of the punishment, the reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the proclamation of the law in the afore-cited precedents and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the rigour under Section 41A of B.A.No.793/2024 -:8:- the Act, I am of the definite view that the petitioner is not entitled to be released on bail at this stage. Hence, I hold that the application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/23.02.24 //True copy// P.A. To Judge