Kerala High Court
Kajahussain 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. 3276 OF 2022
CRIME NO.38/2022 OF Kuzhalmannam Excise Range Office,
Palakkad
PETITIONER/S:
KAJAHUSSAIN
AGED 34 YEARS
SON OF KIDHER, PALLARIKKAL,
KUTHANUR, ALATHUR, PALAKKAD., PIN - 678721
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
BA No. 3276 of 2022
P.V.KUNHIKRISHNAN, J.
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B.A.No. 3276 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.38 of 2022 of
Kuzhalmannam Excise Range. The above case is registered
alleging offences punishable under Section 55(i) and 67B of the
Abkari Act.
3.The prosecution case is that on 15.04.2022 at 12.30 pm,
Palakkad Excise Enforcement and Anti Narcotic Special Squad
Prevention Officer and team seized 9.1 litres of Indian Made
Foreign Liquor from Tata Sumo car bearing
Reg.No.KL-49A/5828 meant for sale and thereby the petitioner
committed the offences.
BA No. 3276 of 2022
4. Heard counsel for the petitioner and the Public
Prosecutor. The counsel for the petitioner submitted that even
if the entire allegations are accepted, no offences are made out.
The counsel submitted that at the maximum, the allegation will
amounts to the possession of Indian Made Foreign Liquor in
excess of the prescribed quantity and the same will not attract
the offences under Section 55(i) and 67B of the Abkari Act. It
is submitted that there is no criminal antecedents to the
petitioner. The public prosecutor seriously opposed the bail
application. But the public prosecutor concede that there is no
criminal antecedents to the petitioner. The allegation against
the petitioner is that the petitioner was found in possession of
Indian Made Foreign Liquor. Whether the offences under
Section 55(i) and 67B of the Abkari Act is made out in the facts
and circumstances of the case is a matter to be decided by the
Trial Court. But considering the facts and circumstances of the
BA No. 3276 of 2022
case, I think this bail application can be allowed with 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 in as much 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
extracted hereunder.
"12. We may note that personal liberty is an
important aspect of our constitutional mandate.
The occasion to arrest an accused during
BA No. 3276 of 2022
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:
BA No. 3276 of 2022
1. The petitioner shall appear before the Investigating
Officer within two weeks from today and shall undergo
interrogation.
2. After interrogation, if the Investigating Officer
propose to arrest the petitioner, he 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 suspected, of the
commission of which he suspected.
BA No. 3276 of 2022
6. 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
das
BA No. 3276 of 2022
APPENDIX OF BAIL APPL. 3276/2022
PETITIONER ANNEXURES
Annexure1 TYPED COPY OF THE MAHAZAR IN
CRIME.NO.38/2022 OF KUZHALMANNAM
EXCISE RANGE OFFICE, PALAKKAD
