Sineesh M.K vs State Of Kerala
2022 Latest Caselaw 4928 Ker

Citation : 2022 Latest Caselaw 4928 Ker
Judgement Date : 4 May, 2022

Kerala High Court

Sineesh M.K vs State Of Kerala on 4 May, 2022

                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
                  --------------------------------
                      B.A.No.1582 of 2022
                  -------------------------------
              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

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

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

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