IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 4TH DAY OF MAY 2022 / 14TH VAISAKHA, 1944
BAIL APPL. NO. 1582 OF 2022
AGAINST THE ORDER/JUDGMENT IN CRMC 1103/2021 OF DISTRICT COURT &
SESSIONS COURT,KOZHIKODE
petitioner:
SINEESH M.K.
AGED 39 YEARS
SINEESH M.K,
AGED 39 YEARS, S/O. KUNHIKANNAN,
MANIKKAMKUZHI HOUSE,
CHANGAROTH VILLAGE, KADIYANGAD DESOM,
KOYILANDI TALUK, KOZHIKODE DISTRICT, PIN - 673528.
, PIN - 673528
BY ADV K.P.SUDHEER
RESPONDENT/S:
1 STATE OF KERALA
STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031.
, PIN - 682031
2 THE EXCISE RANGE OFFICER
THE EXCISE RANGE OFFICER ,
BALUSSERY EXCISE RANGE,
BALUSSERY, KOZHIKODE,
PIN - 673612.
, PIN - 673612
BY ADV PUBLIC PROSECUTOR
ADV NEEMA T.V- SR P.P
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1582 OF 2022
2
P.V.KUNHIKRISHNAN, J
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B.A.No.1582 of 2022
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Dated this the 4th day of May, 2022
ORDER
This Bail Application is filed under Section 438 of Criminal Procedure Code.
2. The petitioner is the 1st accused in crime No.85/2020 of Balussery Excise Range. The above case is registered against the petitioner alleging offence punishable under Section 58 of the Abkari Act.
3.The prosecution case is that on 11.07.2020 at about 7.10 pm, the excise party found the petitioner along with the other accused, transporting 12 liters of Indian Made Foreign Liquor which is meant for sale only in Puthucherry State in a motor cycle. Hence it is alleged that the petitioner has committed the above crime.
4. Heard counsel for the petitioner and the Public Prosecutor. The Counsel for the petitioner submitted that the BAIL APPL. NO. 1582 OF 2022 3 final report is already filed. The Counsel submitted that even if the entire allegations are accepted, the offence under Section 58 of the Abkari Act is not made out. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner had not co-operated with the instigation. It is true that the allegation against the petitioner are very serious. But the prosecution case is that the petitioner is found in possession of excess quantity of Indian made foreign liquor. As per Annexure A2, the 2 nd accused is already released on bail. In the light of the same, there is no justification in denying bail to the petitioner. Therefore, the bail application is allowed.
5. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule BAIL APPL. NO. 1582 OF 2022 4 and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
6. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353) considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.
"12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."
7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: BAIL APPL. NO. 1582 OF 2022 5
1. The petitioner shall surrender before the Committal Court within two weeks.
2. On surrender before the Committal Court, the petitioner shall be released on bail on executing a bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.
3. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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.
4. Petitioner shall not leave India without permission of the jurisdictional Court.
5. Petitioner shall not commit an offence BAIL APPL. NO. 1582 OF 2022 6 similar to the offence of which he is the accused, or suspected, of the commission of which he is suspected.
6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.
Sd/-
P.V.KUNHIKRISHNAN JUDGE Nsd BAIL APPL. NO. 1582 OF 2022 7 APPENDIX OF BAIL APPL. 1582/2022 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF ORDER DATED 8.9.2021 IN CRL.
M.C. NO. 1103/2021 PASSED BY SESSIONS COURT, KOZHIKODE DIVISION.
ANNEXURE A2 TRUE COPY OF ORDER DATED 29.10.2021 IN B.A.NO.7732/2021 OF THIS HON'BLE COURT.