Sajeesh Kumar A v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 11440 OF 2023 ``` ``` CRIME NO.168/2023 OF THAMARASSERY EXCISE RANGE OFFICE, ``` ## **`KOZHIKODE`** ``` AGAINST THE ORDER DATED IN CRMC NO.1777 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` SAJEESH KUMAR. A AGED 37 YEARS S/O BALARAMAN NAIR, THEKKEPURAYIL HOUSE, PARAPPANPOYIL P.O, THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673573 ``` ## **`BY ADV T.H.ARAVIND`** ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` - **`2 THAMARASSERY EXCISE RANGE INSPECTOR THAMARASSERY, KOZHIKODE, PIN - 673573`** ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.11440 of 2023** ``` 2 ``` ## **Dated this the 6[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the accused in Crime No.168/2023 of the Thamarassery Excise Range, Kozhikode, registered against him for allegedly committing the offences punishable under Sections 58 and 55 (g) of the Kerala Abkari Act 1 of 1077. 3. The crux of the prosecution case is that; on 02.10.2023, at around 17.50 hours, the Excise Party recovered 13 litres of arrack, 130 litres of wash, and utensils used for distilling arrack from the thatched shed attached to the poultry farm attached to the residential **B.A. NO.11440 of 2023** ``` 3 ``` building No.XII/340 of Thamarassery panchayath owned by one Leelavathi Amma. On seeing the Excise Party, the accused ran away from the spot. Hence, he could not be apprehended. However, in the investigation, it has been revealed that it was the accused who ran away from the spot. Thus, the accused has committed the above offence. 4. Heard Sri. T.H. Aravind, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. There is no material to substantiate the involvement of the petitioner in the crime. The petitioner has been implicated solely on the basis of suspicion. The petitioner is a Chronic Psoriasis patient, and his immunity has been compromised. The learned counsel for the petitioner relied on an order of **B.A. NO.11440 of 2023** ``` 4 ``` the Hon’ble Supreme Court in SLA (Crl) No.2225/2022 dated 11.04.2022, to canvas the position that the Hon’ble Supreme Court has held that persons whose immunity has been compromised are entitled to the benefit of Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, i.e., to expedite the disposal of the legal proceedings. As per Section 36 of the Act, such patients are also entitled to be enlarged on bail. Therefore, the petitioner is entitled to the benefit of a statutory provision and be enlarged on bail. Even though the petitioner had filed a similar application before the Court of Session, Kozhikode, the same was dismissed by Annexure A3 order. The petitioner is ready to abide by any stringent condition that may be imposed by this Court and cooperate with the investigation. Hence, the application may be allowed. ``` 5 ``` ## **B.A. NO.11440 of 2023** 6. The learned Public Prosecutor seriously opposed the application. He contended that a substantial quantity of the contraband was seized from the property wherein the petitioner was residing. He contended that the application is hit by the rigour under Section 41 A of the Abkari Act. The petitioner’s custodial interrogation is necessary, and recovery is 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. On an analysis of the record, it is seen that the Excise Party had seized 13 litres of arrack, 130 litres of wash, along with utensils used by the accused for the purpose of distilling illicit liquor. The investigation has unveiled that the petitioner was residing in the same building from which the contraband article was seized. 8. The petitioner had moved a similar application ``` 6 ``` ## **B.A. NO.11440 of 2023** before the Court of Session, Kozhikode, i.e., Crl.M.C.No.1777/2023. By Annexure A3 order, the learned Sessions Judge dismissed the application on the finding that the petitioner’s custodial interrogation is necessary and recovery is to be effected. 9. Admittedly, a huge quantity of the contraband was allegedly seized from the premises wherein the petitioner was residing. ## 10. 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 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 ``` 7 ``` ## **B.A. NO.11440 of 2023** 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] 11. 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. 12. After bestowing my anxious consideration to the facts, rival submissions made across the Bar, the materials placed on record, and particularly taking note of the fact that a huge quantity of contraband was allegedly seized from the property where the petitioner ``` 8 ``` ## **B.A. NO.11440 of 2023** was residing, that the investigation in the case is only at the nascent stage, that the petitioner's custodial interrogation is necessary, and that recovery is to be effected, I am prima facie satisfied that the accusations attributed against the petitioner are probable. 13. In **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 **B.A. NO.11440 of 2023** ``` 9 ``` 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 justifying its exercise. Similarly, the discretion **B.A. NO.11440 of 2023** ``` 10 ``` 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. ## 14. 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. 15. On comprehending the seriousness, gravity and nature of the accusations levelled against the petitioner, I am not convinced that the petitioner has diluted the ``` 11 ``` ## **B.A. NO.11440 of 2023** 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 in future. 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. Reultantly, the bail application is dismissed. ``` Sd/- ``` ## **C.S.DIAS, JUDGE** ``` mtk/06.03.24 ``` **B.A. NO.11440 of 2023** ``` 12 ``` ## **`APPENDIX OF BAIL APPL. 11440/2023`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A 1THE TRUE COPY OF THE OCCURRENCE REPORT DATED 02.10.2023 ANNEXURE A 2THE TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER ISSUED BY THE MEDICAL COLLEGE, KOZHIKODE ANNEXURE A 3ORDER DATED 18-10-2023 IN CRMC 1777/2023 ONDISTRICTCOURT&SESSIONS COURT,KOZHIKODE ```