Prakash v. State of Kerala and The Excise Inspector

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 851 OF 2024`** ## **`CRIME NO.3/2024 OF ERNAKULAM EXCISE RANGE OFFICE,`** ## **`ERNAKULAM`** ## **`AGAINST THE ORDER/JUDGMENT CRMC 133/2024 OF DISTRICT COURT`** ``` & SESSIONS COURT, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` PRAKASH, AGED 42 YEARS S/O. KARUNAKARAN,PADUKALIKUNNEL HOUSE, AYYANCHIRANGARA P.O.,ARACKAPADY VILLAGE, ERNAKULAM DISTRICT, PIN - 683556 BY ADV STEPHY K REGI ``` ## **`RESPONDENTS/STATE & DE-FACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ERNAKULAM., PIN - 682031 2THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, PERUMBAVOOR, ERNAKULAM DISTRICT -683 542, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV SMT. SHNYMOL V. O. - PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 851 OF 2024 ------------------------------------------------------Dated this the 22[nd] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.3/2024 of the Excise Range Office, Perumbavoor, Ernakulam registered against him for allegedly committing the offences punishable under Sections 55(i) and 67B of the Kerala Abkari Act (1 of 1077). 3. The gist of the prosecution case is that: on 05.01.2024 at around 06.10 p.m., the accused was found engaged in the sale of 4 liters of Indian made foreign liquor, which was stored in the scooter bearing ``` 3 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` Registration No.KL-40V-4576 on the side of the road near Perumani. On seeing the Excise party, the accused fled away from the scene. The contraband was seized from the scooter. Thus, the accused has committed the above offences. 4. Heard; Sri. Stephy K. Regi the learned counsel appearing for the petitioner and Smt. Shynimol V. O., 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 accusations levelled against him. The petitioner has been falsely implicated in the crime. The petitioner had not indulged in the sale of the contraband article as alleged by the prosecution. The learned counsel relied on the decisions of this Court in **Mohanan v. State of Kerala** [2007(1) ILR Page No.692], **Sobichan v. State** ``` 4 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` **of Kerala** [2013(3) KLT SN 89(C.No.93)] and **Nobbey v. State of Kerala** [2011(1) KLT SN 51 (C.No.68)] to drive home his contention that the mere possession of liquor will not attract the above offences. He contended that the petitioner’s custodial interrogation is not necessary and no recovery has to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that the specific allegation of the prosecution is that the petitioner was found indulging in illegal sale of liquor at a public place. On seeing the Excise party, the petitioner took to his heels. The petitioner’s custodial interrogation is necessary and recovery has to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence the application may be dismissed. 7. The petitioner had moved the Court of Session, ``` 5 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` Ernakulam for a similar relief by filing Crl.M.C. No.133/2024. The learned Sessions Judge, by Annexure A1 order, dismissed the application on finding that the petitioner’s custodial interrogation is necessary and that the recovery has to be effected. 8. The specific allegation of the prosecution is that on 05.01.2024 at around 6.10 p.m., the petitioner was found engaged in the sale of Indian made foreign liquor, which was stored in his vehicle bearing No.KL-40 V 4576. ## 9. 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 ``` 6 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in Satishchandra Ratanlal 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 CrPC 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 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; ``` 7 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` (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 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 ``` 8 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` 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 self-imposed limitations. 10. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. On an anxious consideration to the facts, the ``` 9 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` materials placed on record, the rival submissions made across the Bar, specifically taking note of the accusation levelled against the petitioner, the rigor under Section 41A of the Act, that the petitioner’s custodial interrogation is necessary, that the recovery has to be effected and also on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioner, I am convinced that the petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 12. 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 ``` 10 ``` ``` BAIL APPL. NO. 851 OF 2024 ``` 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. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ## **`BAIL APPL. NO. 851 OF 2024`** ## **`APPENDIX OF BAIL APPL. 851/2024`** ``` PETITIONER’S ANNEXURES Annexure A1TRUE COPY OF ORDER DATED 23.01.2024 IN CRL.M.C. NO.133 OF 2024 OF COURT OF SESSIONS, ERNAKULAM ``` ``` RESPONDENT’S ANNEXURES: NIL ```