Sunil and Vipin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** **BAIL APPL. NO. 9221 OF 2023** **CRIME NO.43/2023 OF Cherppu Excise Range Office, Thrissur** **PETITIONER/ACCUSED NOS. 1 & 2:** **1 SUNIL, AGED 56 YEARS S/O.VELAYUDHAN, KOLLARA HOUSE,KATTOOR P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT, PIN - 680702** **2 VIPIN, AGED 39 YEARS S/O.BALAKRISHNAN, NAMBANATH HOUSE,THANYAM P.O, PERINGOTTUKARA DESOM,THRISSUR DISTRICT, PIN - 680565** **BY ADV NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031** ## **SMT NIMA JACOB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 9221 OF 2023** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 & 2 in crime No.43/2023 of the Cherppu Excise Range Office, Thrissur, registered against them for allegedly committing the offences punishable under Sections 57(a) and 56(b) of the Kerala Abkari Act, 1 of 1077 (in short, 'Act'). 3. The gist of the prosecution case is that: the first accused is a licensee of a toddy shop No.14 of Cherpu Excise Range Office and the second accused is a worker of the first accused. In an inspection that was conducted by the Excise party on 26.10.2022, samples of toddy being sold in the **BAIL APPL. NO. 9221 OF 2023** **3** shop were seized by the Excise party. In the chemical analysis, it was found that the seized toddy samples allegedly contained 8.52% of ethyl alcohol, which is beyond the percentage of 8.1%, prescribed under S.R.O.145/2007. Thus, the accused have committed the above offences. 4. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioners and Smt.Shynimole V.O., learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The very fact that the toddy samples were seized on 26.10.2022 and the chemical analysis was conducted only on 03.07.2023 by itself proves the falsity in the accusation. Furthermore, Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002 has been stayed by the Hon'ble Supreme Court. The Government of Kerala has illegally promulgated SRO 145/2007, which is also under challenge before the Hon'ble Supreme Court. Taking into consideration all the **BAIL APPL. NO. 9221 OF 2023** **4** above aspects, this Court has granted orders of pre-arrest bail to the similarly situated persons as per Annexures 3 to 6 orders. The petitioners are entitled to the benefit of the said orders. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. The petitioners are willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the Investigating Officer. Hence, the application may be allowed. 6. The application is vehemently opposed by the learned Public Prosecutor. She contended that the petitioners' custodial interrogation is necessary for a full and proper investigation of the crime and recovery is to be effected. The application is hit by the rigour under Section 41A of the Act. If the petitioners are granted an order of prearrest bail, it would hamper with the investigation and also send a wrong message to the society. Hence, the application may be dismissed. 7. On a consideration of the materials placed on record, it is evident that the samples of toddy were seized **BAIL APPL. NO. 9221 OF 2023** **5** from the shop of the first accused on 26.10.2022. Annexure 1 Chemical Analysis report and Annexure 2 Occurrence Report substantiates that the sampling was done only on 03.07.2023, that is after eight months. It is common knowledge that toddy ferments and has only a short shelf life. 8. Indisputably, the Hon'ble Supreme Court has stayed the operation of Rule 9(2) of the Kerala Abkari Shops (Disposal) Rules, 2002, wherein the prescribed limit of ethyl alcohol is laid down. It is thereafter that SRO 145/2007 has been promulgated fixing the prescribed limit at 8.1%. Taking into consideration all the above facts and circumstances, in cases of identical nature, by Annexures 3 to 6 orders this Court has granted orders of pre-arrest bail to persons similarly situated to the petitioners. 9. On an overall consideration of the facts, the rival submissions made across the Bar, the materials placed on record and the findings rendered above, I am of the firm view that there are reasonable grounds to hold that the petitioners have committed the offences and are not likely **BAIL APPL. NO. 9221 OF 2023** **6** to commit any offence, thereby diluting the rigour under Section 41A of the Act. Hence, the petitioners are entitled to an order of pre-arrest bail. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners 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; **BAIL APPL. NO. 9221 OF 2023** **7** (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, they 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 filed and entertained before 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 petitioners even while the petitioners are on bail as laid down by the Hon'ble **BAIL APPL. NO. 9221 OF 2023** **8** Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and Anr. [2020 (1) KHC 663].** **Sd/- C.S.DIAS JUDGE** lsn