Rajesh KM v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945** **BAIL APPL. NO. 1638 OF 2024** **CRIME NO.145/2023 OF NILAMBUR EXCISE RANGE OFFICE, MALAPPURAM** **AGAINST THE ORDER/JUDGMENT DATED 04.01.2024 IN CRMC NO.1626 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI / II ADDITIONAL MACT, MANJERI** ## **PETITIONER/ACCUSED:** **RAJESH KM AGED 36 YEARS S/O. MOHANDAS, KAPPAPARAMBIL HOUSE, AKAMPUZHA, KAKKADAMPOYIL POST, KOODARANJI VILLAGE, KOZHIKODE DISTRICT, PIN - 679334** **BY ADVS. A.D.DIVYA SABIN BABU** ## **RESPONDENT/COMPLAINANT:** **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 11.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1638 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.145/2023 of the Excise Range Office, Nilambur, Malappuram, registered against him for allegedly committing the offences punishable under Sections 8(1) & (2) and 67B of the Kerala Abkari Act, 1077. 3. The gist of the prosecution case is that: on 08.12.2023 at around 17.30 hours, when the Preventive Officer of the Nilambur Excise Range Office was conducting patrolling duty, they found 2 litres of arrack stored in a motorcycle bearing Reg.No.KL-57-Q-5226 belonging to the accused. The accused on seeing the Excise party took to his heels. The Excise officials seized the motorcycle and the contraband article. Thus, the accused has committed the above offences. 4. Heard Sri.A.D.Divya, learned counsel appearing for **BAIL APPL.NO.1638 OF 2024** **3** the petitioner and Sri.C.S.Hrithwik, learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner is an agriculturist by profession. He had left his motorcycle near the paddy field and gone for cultivation. On his return, he was told that the motorcycle was seized by the Excise officials. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. He contended that the contraband was seized from the motorcycle of the accused. The accused on seeing the Excise party took to his heels. Moreover, the petitioner is a person with criminal antecedents. He is also an accused in Crime No.118/2022 of the Nilambur Excise Range Office for allegedly committing a similar offence. The **BAIL APPL.NO.1638 OF 2024** **4** application is hit by the rigour of Section 41A of the Abkari Act. The petitioner's custodial interrogation is necessary for a proper investigation in the case. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation and also send a wrong message to the society. Hence, the application may be dismissed. 7. The prosecution allegation is that on 08.12.2023 while Excise party was conducting patrolling duty, they found the accused seated on his motorcycle bearing No.KL57-Q-5226. However, on seeing the Excise party, the petitioner took to his heels. On conducting search of the motorcycle, the Excise party seized 2 litres of arrack from the vehicle. 8. Section 41 A of the Abkari Act 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) 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 **BAIL APPL.NO.1638 OF 2024** **5** 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]. 9. The above provision explicitly postulates that if the Public Prosecutor opposes an application, then this Court has to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. 10. On a consideration of the accusations levelled against the petitioner, especially the fact that the contraband article was seized from the motorcycle belonging to the petitioner and that the petitioner is a person with criminal **BAIL APPL.NO.1638 OF 2024** **6** antecedents, prima facie, I find that the accusations attributed against the petitioner to be probable. ## 11. **Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]** the Hon’ble Supreme Court has held as follows: 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; (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.1638 OF 2024** **7** 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 self-imposed limitations. ## 12. 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 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 **BAIL APPL.NO.1638 OF 2024** **8** applicant has been falsely enroped in the crime and his liberty is being misused. 13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record and especially on comprehending the seriousness, gravity and nature of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, the recovery is to be effected and the fact that the petitioner is a person with criminal antecedents, I am not convinced that the petitioner has diluted the rigour under Section 41A of the Abkari Act, to hold that he has not committed the offences and is not likely to commit the offences. 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. 14. Reultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, **BAIL APPL.NO.1638 OF 2024** **9** 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 consider the bail application on its merits. 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** ## **shg**