Vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for short), by the second accused in Crime No.1/2024 of the Excise Range Office, Kayamkulam, registered against the accused, for allegedly committing the offences punishable under Sections 55(a), 58 & 67(b) of the Kerala Abkari Act,1 of 1077. The petitioner was arrested on 03.01.2024.

The essence of the prosecution case is that: on 02.01.2024, at around 22.45 hours, the Excise party found the accused in possession of 374 litres of spirit in 11 plastic cans, in a car driven by the second accused. The accused were arrested on the spot with the contraband article. Thus, the accused have committed the above offences.

Heard;  Sri.Alex  K.John,  learned  counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondents.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. Even going by the prosecution case, the car was driven by the first accused. Notwithstanding the other contentions raised in the bail application, since the petitioner was remanded to judicial custody on 03.01.2024, the offences alleged against the petitionerare punishable for a period of less than 10 years and that the final report has not been laid, the petitioner is entitled to be released on statutory bail as contemplated under the proviso to sub-section (ii) of Section 167(2) of the Code. Hence, the bail application may be allowed.

The  learned  Public  Prosecutor  seriously opposed the application. She contended that a huge quantity of illicit liquor was seized from the accused. The first accused is yet to be arrested. The investigation in the case is not complete. Hence, the application may be dismissed. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody since 03.01.2024, the final report has not been laid and the statutory period contemplated under Section 167(2)(ii) has lapsed.

On a consideration of the materials on record, it is evident that the petitioner was remanded to judicial custody on 03.01.2024, that the offences alleged against him are all punishable for a period of less than 10 years and that the final report has not been laid.

The Constitution Bench of the Honourable Supreme Court in Sanjay Dutt v.State through C.B.I., Bombay [(1994) 5 SCC 410] after laying down the principles, recorded its conclusions, of which conclusion 53 (2) (b) is relevant for this case, which is reproduced below:

"53.(2)(b) The "indefeasible right" of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167 of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage."

A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v. State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:

" 13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.”

(emphasis added)

In the instant case, as the petitioner was remanded to judicial custody on 03.01.2024, and the offences alleged against the petitioner are all punishable for a period of less than 10 years and the Final Report has not been laid till date, I am of the definite view that the petitioner is entitled to be released on statutory bail since it is his indefeasible right under Section 167(2)(ii) of the Code. Hence, I am constrained to allow the bail application.

In  the  result,  the  application  is  allowed,  by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever;

(iii)The petitioner shall not commit any offence while he is on bail;

(iv)In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law;

(v) Applications for deletion/modification of the bail conditions shall also be filed and entertained by the court below.

(vi)Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State(NCT of Delhi) and Anr. [2020 (1) KHC 663].