Sivaji v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-02-07
Court Decision / Holding: The application is allowed. The petitioner is to be released on bail on a bond of Rs. 50,000 with two solvent sureties of equal amount, subject to conditions: (i) weekly appearances before the Investigating Officer for a month or until final report, (ii) prohibition on inducement or tampering with witnesses, (iii) prohibition on commission of any offence while on bail, (iv) surrender of passport, (v) potential cancellation of bail on violation, (vi) possibility to modify/delete bail conditions by the trial court, (vii) IO may continue investigation and effect recoveries as needed, in line with Sushila Aggarwal v. State (NCT of Delhi).
Final Disposition: Granted bail with conditions (bail allowed)

Parties to the Case

Appellants / Petitioners

Sivaji

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Adv S. Nikhil Sankar

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

The Kerala High Court, Ernakulam, presided over by Justice C. S. Dias, disposed of Bail Application No. 34 of 2024 filed under Section 439 CrPC. The sole accused in Crime No. 123/2023 of the Nedumangad Excise Range Office, Thiruvananthapuram, is alleged to have committed offences under Sections 8(1), 8(2) and 55(g) of the Kerala Abkari Act, 1077. Arrested on 17 December 2023, the prosecution case asserts that on 16 December 2023, around 9:30 pm, the accused was found in possession of 200 liters of wash, 50 liters of spent wash, 25.6 liters of arrack and brewing utensils at house NMC XXV/213 in Nedumangad Taluk. The applicant contends innocence and claims false implication, noting 55 days of judicial custody and that investigation is nearly complete with recovery already effected. The Public Prosecutor opposed bail, citing antecedents (three other cases) and that investigation remains incomplete, although she conceded the prolonged custody. After careful consideration, the court found the investigation near conclusion, recovery effected, and that the offences predate 2019, thus allowing bail with stringent conditions. The order directs release on a bond of Rs. 50,000 with two solvent sureties, subject to conditions including regular appearances, non-inducement, no further offences, passport surrender, potential for bail cancellation on violation, and that investigation may continue if necessary in light of Sushila Aggarwal v. State (NCT of Delhi).

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 8(1), 8(2) and 55(g) of the Kerala Abkari Act, 1077Section 41A of the Kerala Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner claims innocence and false implication. He has been in judicial custody since 17.12.2023 (55 days). The investigation is practically complete with recovery effected. He contends that the rigour of Section 41A of the Abkari Act should not preclude bail, especially given that the offences occurred prior to 2019, and seeks enlargement on bail under stringent conditions.

Contentions of Respondents

The State opposes bail, noting the petitioner’s antecedents (three other cases) and that the investigation is not fully complete, though conceding the 55 days of custody and the recoveries. It argues that bail should be restricted pending further investigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Court relies on the principle laid down in this Supreme Court decision to allow conditional bail with continued investigation and potential recoveries, and to empower the court to cancel/modify bail if conditions are violated.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** **BAIL APPL. NO. 34 OF 2024** **CRIME NO.123/2023 OF Nedumangad Excise Range Office,** **Thiruvananthapuram** ## **PETITIONER/S:** SIVAJI, AGED 53 YEARS S/O JOHNY,SIVAJI BHAVAN, KALIYIKKAL,VITHURA P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695551 BY ADV S.NIKHIL SANKAR ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,HIGH COURT OF KERALA P.O, ERNAKULAM DISTRICT, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 34 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.123/2023 of the Nedumangad Excise Range Office, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Secs.8(1), 8(2) and 55(g) of the Kerala Abkari Act, 1077. The petitioner was arrested on 17.12.2023. 2. The gist of the prosecution case is that: around 9.30 p.m. on 16.12.2023, the accused was found in possession of 200 liters of wash, 50 liters of spent wash, 25.600 liters of arrack and utensils for brewing the same from house no.NMC XXV/213 in Nedumangad Taluk. Thus, the accused has committed the above offences. 3. Heard; Sri.Nikhil Sankar S., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. BAIL APPL. NO. 34 OF 2024 3 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody since 17.12.2023, which is more than 55 days. The investigation in the case is practically complete. The recovery has been effected. The petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner is a person with antecedents. There are three other cases registered against him. The investigation in the case is not complete. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody since the last 55 days and recovery has been effected. BAIL APPL. NO. 34 OF 2024 4 6. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and particularly taking note of the fact that the petitioner has been in judicial custody since the last 55 days, that the investigation in the case is at the fag end, that recovery has been effected and notwithstanding the rigour under Section 41A of the Abkari Act, especially since the offences are all prior to 2019, I am of the definite view that the petitioner can be enlarged on bail. Hence, I hold that the petitioner is entitled to be released on bail, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the BAIL APPL. NO. 34 OF 2024 5 satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, BAIL APPL. NO. 34 OF 2024 6 before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the BAIL APPL. NO. 34 OF 2024 7 petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi)** **and another** [2020 (1) KHC 663]. **sd/-** **C.S.DIAS JUDGE** rkc/07.02.24 BAIL APPL. NO. 34 OF 2024 8 ## **APPENDIX OF BAIL APPL. 34/2024** PETITIONER ANNEXURES Annexure 1 .TRUE COPY OF THE ORDER IN C.M.P NO:10562/2023 OF J.F.C.M-II, NEDUMANGAD DATED 20/12/2023 Annexure 2 TRUE COPY OF THE QUALITATIVE/QUANTITATIVE REPORT OF PETITIONER'S WIFE BY CONSULTANT DOCTOR, MEDICAL COLLEGE HOSPITAL DATED 05/12/2023