Vijayan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 2000 OF 2024 ``` ``` CRIME NO.8/2024 OF Alappuzha Excise Range Office, Alappuzha PETITIONER/S: ``` ``` VIJAYAN AGED 60 YEARS S/O KUNJU PILLAI, RESIDING AT ARACKAL HOUSE, PUNNAPAR NORTH P.O., PARAVOOR VILLAGE, ALAPPUZHA DISTRICT., PIN - 688003 BY ADVS. SURESH JOSEPH SANALKUMAR.B VIDHU C. LEKHAMOLE P.N. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2INSPECTOR O F EXCISE EXCISE RANGE OFFICE, ALAPPUZHA, PIN - 688001 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2000 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2000 of 2024** ## **-----------------------------------** ## **Dated this the 18[th] day of March, 2024** ## **ORDER** 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 petitioner is the sole accused in Crime No.8/2024 of the Alappuzha Excise Range Office, registered against him for allegedly committing the offence punishable under Section 55 (i) of the Kerala Abkari Act 1 of 1077. 3. The crux of the prosecution case is that; on 30.1.2024, at around 12 hours., the accused was found engaged in the sale of Indian Made Foreign Liquor (IMFL) near his residential building in Punnapra North Panchayat, Paravoor Village, Alappuzha District, in violation of the 3 BA No.2000 of 2024 provisions of the Act. In the subsequent search that was conducted at the house of the accused, 3.25 litres of IMFL was seized from the house. Thus, the accused has committed the above offence. 4. Heard Sri. Suresh Joseph, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. There is no material to prove that the contraband was allegedly seized from the conscious possession of the petitioner. The property from where the contraband was seized, belongs to the petitioner’s father. There are other adult members residing in the said house. The Investigating Officer has on the basis of assumptions, implicated the petitioner as an accused in the crime. The petitioner’s custodial interrogation is not necessary and no 4 BA No.2000 of 2024 recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner on seeing the excise party took to his heels. The excise officials had clearly identified that the petitioner while he was conducting the sale of the contraband article. Out of 3.25 litres of IMFL, 750 ml of IMFL which was meant for sale to the defence personnels only. The petitioner’s custodial interrogation is necessary and recovery is to be effected. The application is hit by the rigour under Section 41 A of the Abkari Act. 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 evaluation of the materials placed on record, it can be gathered that the allegation against the petitioner that he in violation of the provisions of the Act, stored 3.25 litres of IMFL in the house where he was residing and was selling the same to the public. The petitioner on seeing 5 BA No.2000 of 2024 the excise party fled away from the scene. The petitioner’s relatives had allegedly stated that it was the petitioner who indulged in committing the above offence. 8. The petitioner had filed Crl M.P No.819/2024 before the Court of Session, Alappuzha, under Sec.438 of the Code for a similar relief. By Annexure-1 order, the learned Sessions Judge, dismissed the application on the ground that the same is hit by Sec.41A of the Act. 9. 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 Public Prosecutor, as the case may be, opposes the application, the court is satisfied that there are reasonable grounds for 6 BA No.2000 of 2024 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] 10. 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. 11. On a consideration of the accusations levelled against the petitioner, especially the fact that the contraband was allegedly seized from the house in which the petitioner was residing and the petitioner’s family members themselves have stated that the contraband was stored by the petitioner. Hence, prima facie, I find that the accusations levelled against the petitioner to be justifiable. 7 BA No.2000 of 2024 12. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to a catena of decisions has expounded the manner in which the power under Sec.438 of the Code is to be exercised, by holding thus: “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 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 8 BA No.2000 of 2024 Court concerned has to be very cautious as the grant of interim protection or protection to the 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.” 13. 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. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the fact that there are prima facie materials to establish 9 BA No.2000 of 2024 the involvement of the petitioner in the crime, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not convinced that the petitioner has diluted the 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** ``` sks/18.3.2024 ```