Ramani v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 BAIL APPL. NO. 431 OF 2024 ``` ## **`CRIME NO.137/2023 OF NOORANAD EXCISE RANGE OFFICE, ALAPPUZHA`** ## **`PETITIONER/ACCUSED:`** ``` RAMANI AGED 40 YEARS W/O.AMBUJAKSHAN, AMBUJAKSHA BHAVANAM, THALIRADI MURI, KADUVINAL, VALLIKUNNAM VILLAGE, MAVELIKARA TALUK, ALAPPUZHA DISTRICT., PIN - 690501 ``` ``` BY ADVS. R.REJI M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE JEENA A.V. THOMAS THOMAS ``` ## **`RESPONDENT:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 THE EXCISE INSPECTOR EXCISE RANGE OFFICE, NOORANDADU, NOORANADU (PO), ALAPPUZHA DISTRICT, PIN - 690504` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.431 of 2024 2 **Dated this the 29[th ] day of January, 2024** ## **ORDER** 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 O.R No.137/2023 of the Nooranad Excise Range Office, Alappuzha, registered against the petitioner for allegedly committing the offences punishable under Sections 13, 55 (i) and 63 of the Kerala Abkari Act. 3. The essence of the prosecution case is that: around 3.30 p.m. on 18.12.2023, the accused was found in possession of 1.2 litres of Indian Made Foreign Liquor in three plastic bottles each having a capacity of 500 ml (2 Nos), containing 200 ml each and 800 ml in one litre plastic bottle. Thus, the accused has committed the above offences. B.A.No.431 of 2024 3 4. Heard; Sri.R.Reji, the learned counsel appearing for the petitioner and Smt. Seetha S., 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 accusation levelled against her. She has been falsely implicated in the crime. The petitioner’s custodial interrogation is not necessary. The contraband article which was seized is of a small quantity, which was not used for sale. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the petitioner has criminal antecedents. She is involved in two other cases of similar nature. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is let off on bail, it would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. B.A.No.431 of 2024 4 ## 7. 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 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; B.A.No.431 of 2024 5 (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 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 B.A.No.431 of 2024 6 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. 8. 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 applicant has been falsely enroped in the crime and his liberty is being misused. 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the criminal antecedents of the petitioner, the nature, gravity and seriousness of the offences alleged against her, that the investigation in the case is in progress, that the B.A.No.431 of 2024 7 custodial interrogation of the petitioner is necessary and also taking into account the rigour under Section 41 A of the Kerala Abkari Act, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she 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 on the date of surrender itself and pass orders in accordance with law. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner 8 B.A.No.431 of 2024 as if no order has been passed in this case. SD/- rmm30/1/2024 **C.S.DIAS, JUDGE**