Subramanian v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ## **`BAIL APPL. NO. 5737 OF 2024`** ``` CRIME NO.54/2024 OF THRITHALA EXCISE RANGE, PALAKKAD DISTRICT, PALAKKAD ``` ## **`PETITIONER/ACCUSED:`** ``` SUBRAMANIAN AGED 44 YEARS S/O.CHANDRAN, PARAMBIL HOUSE, PATTAMBI POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN - 679303 ``` ``` BY ADVS. R.SREEHARI HAMZA A.V. APARNA M.P. VIGNESH S. DHANYA C.R. ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** ``` 2EXCISE INSPECTOR EXCISE RANGE OFFICE, THRITHALA, NHANGATTIRI POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN - 679303 ``` ``` BY ADV SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` ## **O R D E R** ## **Dated this the 1[st] day of August, 2024** The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ‘BNSS’), for an order of pre-arrest bail. 2. The petitioner apprehends arrest in Crime No.54/2024 of the Excise Range Office, Thrithala, Palakkad, which is registered against him for allegedly committing the offence punishable under Section 55(i) of the Kerala Abkari Act, 1 of 1077 (for short ‘the Act’). 3. The prosecution case, in brief, is that: on 03.06.2024, at around 20.00 hours, the Excise party seized 20 liters of Indian Made Foreign Liquor from the house of the petitioner, which was meant for sale. Thus, the accused has committed the above offence. 4. Heard; Sri. Sreehari R., the learned counsel ``` 3 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` appearing for the petitioner and Smt. Neema T. V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offence. The Investigating Officer has deliberately implicated the petitioner as an accused out of his previous animosity. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner is the sole breadwinner of his family. If the petitioner is apprehended, he is certain that he would be subjected to custodial torture. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that 20 liters of Indian Made Foreign Liquor was seized from the residence of ``` 4 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` the petitioner. The prima facie materials would show that the petitioner had committed the above offence. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. In addition to the same, the application is hit by the rigor under Section 41A of the Act. Hence, the application may be dismissed. 7. The allegation against the petitioner is that, 20 liters of Indian Made Foreign Liquor was seized from his residence by the Excise party. Admittedly, the offence alleged against the petitioner falls within the sweep of Section 41A of the Act. There are prima facie materials to substantiate the petitioner’s involvement in the crime. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier ``` 5 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` ## decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the ``` 6 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. ## 9. 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. ``` 7 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, the prima facie materials that substantiate the petitioner’s involvement in the crime, the petitioner’s custodial interrogation is necessary and the offence alleged against the petitioner falls within the sweep of Section 41A of the Act, I am not satisfied that the petitioner has made out any satisfactory grounds to invoke the extraordinary jurisdiction of this Court under Section 482 of BNSS. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 7 days from today, he shall be interrogated and, ``` 8 ``` ## **`BAIL APPL. NO.5737 OF 2024`** 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** BR ``` 9 ``` ``` BAIL APPL. NO.5737 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 5737/2024`** |**`PETITIONER’S`**|**`ANNEXURES`**| |---|---| |**`Annexure 1`**|**`CERTIFIED COPY OF THE CRIME AND`**| ||**`OCCURRENCE REPORT DATED 04/06/2024 IN`**| ||**`CRIME NO.54/2024 OF EXCISE RANGE OFFICE,`**| ||**`THRITHALA`**| |**`Annexure 2`**|**`CERTIFIED COPY OF THE MAHAZAR REPORT`**| ||**`DATED 03/06/2024 PREPARED BY THE`**| ||**`ASSISTANT EXCISE INSPECTOR, EXCISE RANGE`**| ||**`OFFICE, THRITHALA IN CRIME NO.54/2024 OF`**| ||**`EXCISE RANGE OFFICE, THRITHALA`**| |**`Annexure 3`**|**`FREE COPY OF THE ORDER ISSUED BY THE`**| ||**`COURT OF SESSION, PALAKKAD IN CRIMINAL`**| ||**`MISCELLANEOUS CASE NO.3580/2024 IN CRIME`**| ||**`NO.54/2024 OF EXCISE RANGE OFFICE,`**| ||**`THRITHALA DATED 28/06/2024`**| ## **`RESPONDENT’S ANNEXURES: NIL`**