Afsal vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application is filed under Section 439 of Criminal Procedure Code.

Petitioner is the accused in Crime No.197 of 2022 of the Thadiyittaparambu Police Station. The above case is registered against the petitioner alleging offences punishable under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 118 (i) of Kerala Police Act and Section 6(a), 6(b), 24 of the Cigarette and Other Tobacco Products Prevention Act, 2003. The petitioner is in custody from 16.03.2022.

The prosecution case is that on 16.03.2022 at 6.50 pm, the accused was found selling prohibited tobacco product namely ‘Hans’ from his shop situated near Hidayatul Muslimeen Madrassa, Kaipoorikara, to a minor child aged about 12 years and also found keeping in his possession 2414 packets of ‘Hans’ in the autorickshaw bearing registration No.KL-07-CG-9886 and a car bearing registration No.KL-40-P-9097, which were parked near his shop. Hence it is alleged that the accused committed offence.

Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the petitioner is in custody from 16.03.2022 onwards. The counsel for the petitioner submitted that the petitioner is falsely implicated in this case. The counsel for the petitioner submitted that the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is involved in other cases also. The Public Prosecutor also submitted that the petitioner may not be released on bail at this stage. It is true that the allegations against the petitioner are very serious. But the petitioner is in custody from 16.03.2022 onwards. The apprehension of the prosecution is that if the petitioner is released on bail, he will commit similar offences. If any case is registered against the petitioner subsequent to this order, the prosecution is free to file an application before the jurisdictional Court to cancel this bail and the jurisdictional Court will pass appropriate orders in it, even though the bail order is passed by this Court. There can be a direction to the petitioner to appear before the Investigating Officer on all Mondays, Wednesdays and Fridays till final report is filed. During the bail period, if there is any criminal activity on the part of the petitioner, I once again make it clear that the Investigating Officer is free to file an application for cancellation of the bail. With the above conditions, this bail application can be allowed.

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.

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:

Petitioner shall be released on bail on executing a bond for Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.

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/her from disclosing such facts to the Court or to any police officer.

Petitioner shall not leave India without permission of the jurisdictional Court.

Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

The petitioner shall appear before the Investigating Officer on all Mondays, Wednesdays and Fridays at 10 am till final report is filed.

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.