Shanu S. and Sarath @ Rahul Krishnan v. State of Kerala & Excise Inspector, Anchal Excise Range Office, Kollam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1580 OF 2024 ``` ``` CRIME NO.12/2024 OF ANCHAL FOREST RANGE OFFICE, KOLLAM ``` ## **`PETITIONERS/ACCUSED 1 & 2:`** ``` 1SHANU.S AGED 27 YEARS S/O.SHIBU, LABOUR COLONY, DAM P.O, KULATHUPUZHA, THENMALA, KOLLAM, PIN - 691308 ``` - **`2 SARATH @ RAHUL KRISHNAN AGED 24 YEARS S/O.GOPALAKRISHNAN, CHARUVILA PUTHEN VEEDU, CHALIYACARA P.O, EDAMON, SHALIACARRY ESTATE, KOLLAM, PIN - 691305`** ``` BY ADVS. K.SIJU ANJANA KANNATH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 EXCISE INSPECTOR ANCHAL EXCISE RANGE OFFICE, KOLLAM, PIN - 691306`** ## **`OTHER PRESENT:`** ## **`PUBLIC PROSECUTOR SMT SHYNIMOL V O`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.1580 of 2024** ``` 2 ``` ## **Dated this the 7[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2.The petitioners are the accused 1 and 2 in C.R.No.12/2024 of the Anchal Excise Range Office, Kollam registered against them for allegedly committing the offence punishable under Section 55(g) of the Kerala Abkari Act 1 of 1077. 3. The crux of the prosecution case is that; on 6.2.2024, at around 16.40 hours, the Excise party attached to the Excise Range office, Anchal, while conducting a patrol duty, got information that illicit liquor was being brewed in an abandoned property at Cheruthannoor Desom in Edamon Village, Punalur Taluk. ``` 3 ``` ## **B.A. NO.1580 of 2024** Accordingly, the Excise party proceeded to the said property and they seized illicit arrack and 110 litres of wash and utensils. The investigation has revealed that the property belongs to the petitioners. Thus, the accused have committed the above offence. 3. Heard Sri. K.Siju, the learned counsel appearing for the petitioners and Smt.Shynimol V.O, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. There is no material to substantiate that the property belongs to the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that there are **B.A. NO.1580 of 2024** ``` 4 ``` incriminating materials to substantiate the fact that the property belongs to the petitioners and the petitioners are involved in the crime. She further submitted that the application is hit by the rigour under Section 41A of the Abkari Act, the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, they would sabotage the investigation. Hence, the application may be dismissed. 6. The prosecution allegation is that the Excise party seized illicit arrack and 110 litres of wash and utensils from the property allegedly belonging to the petitioners. 7. 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 **B.A. NO.1580 of 2024** ``` 5 ``` 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] 8. 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. 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 **B.A. NO.1580 of 2024** ``` 6 ``` 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; (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 **B.A. NO.1580 of 2024** ``` 7 ``` 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 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 **B.A. NO.1580 of 2024** ``` 8 ``` 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 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. 11. On a consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity and accusations levelled against the petitioners, that the contraband that was allegedly seized from the property of the petitioners, that their custodial ``` 9 ``` ## **B.A. NO.1580 of 2024** interrogation is necessary and recovery is to be effected and taking into account the rigour under Section 41A of the Abkari Act, I am not convinced that the petitioners have diluted the rigour under Section 41A of the Abkari Act, to hold that they have not committed the offence and is not likely to commit the offence. The petitioners have 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. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail applications on its merits. If the petitioners do ``` 10 ``` ## **B.A. NO.1580 of 2024** not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. **SD/-** **C.S.DIAS, JUDGE** ``` rmm/7/3/2024 ```