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. 3249 OF 2022
PETITIONER:
UNNI @ UNNIKRISHNAN
AGED 46 YEARS
PULLAMPALLLI VELUTHEDATH, NORTH BEPORE.P.O.,
KOZHIKODE DISTRICT., PIN - 673015
BY ADV O.D.SIVADAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 2. THE STATION HOUSE OFFICER
MARAD POLICE STATION,
KOZHIKODE DISTRICT., PIN - 673018
BY ADV PUBLIC PROSECUTOR
ADV VIPIN NARAYAN - 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. 3249 OF 2022
2
P.V.KUNHIKRISHNAN, J
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B.A.No. 3249 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 accused in crime no.155/2022 of Marad Police Station. The above case is registered against the petitioner alleging offence punishable under Section 55(i) of the Abkari Act.
3.The prosecution case is that the petitioner was found in possession of 5.3 liters of indian made foreign liquor which was siezed from a paddy near Pulichottil Kariyathankavu.
4. Heard counsel for the petitioner and the Public Prosecutor. The Counsel for the petitioner submitted that the petitioner had no connection to the contraband seized from the paddy field. The Counsel submitted that even if the entire allegations are accepted, the offence under Section 55(i) of the Abkari Act is not made out. The Public Prosecutor submitted that the contraband siezed is manufactured in Mahi and therefore the offence is attracted. The BAIL APPL. NO. 3249 OF 2022 3 Public Prosecutor submitted that if this Court is granting bail, stringent conditions may be imposed. The allegations against the petitioner is very serious. But the prosecution case is that the petitioner is found in possession of Indian made foreign liquor in excess from the prescribed quantity. Considering the facts and circumstances of the case, I think that custodial interrogation of the petitioner is not necessary because the search, arrest, seizure etc is already over. In such circumstances, the petitioner can be granted anticipatory bail after imposing stringent conditions.
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 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 BAIL APPL. NO. 3249 OF 2022 4 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:
1. The petitioner shall appear before the Investigating Officer within two weeks from today BAIL APPL. NO. 3249 OF 2022 5 and shall undergo interrogation.
2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he/they 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 appear before the Investigating Officer for interrogation as and when required. 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 similar to the offence of which he is accused, or BAIL APPL. NO. 3249 OF 2022 6 suspected, of the commission of which he is suspected.
6. The petitioner shall appear before the Investigating Officer on all Mondays, Wednesdays and Fridays at 10 am till final report is filed.
7. 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