Noushad Khan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in crime No.102/2023 of the Excise Range Office, Kattakkada, registered against the accused for allegedly committing the offences punishable under Sections8(1), 8(2) of the Kerala Abkari Act. The petitioners were arrested on 20.12.2023.

The gist of the prosecution case is that: around 7.50 p.m, on 20.12.2023, the accused were found in possession and were transporting 16 litres of arrack in a car bearing registration No.KL-11-R-2952. Thus, the accused have committed the above offences.

Heard; Sri.Vishnu Das, the learned counsel appearing for the petitioners and Smt. Seetha. S, the learned Public Prosecutor appearing for the respondents.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The petitioners have been in judicial custody since 20.12.2023, which is more than 35 days. The investigation in the case is complete, and recovery has been effected. The petitioners' continued detention is unnecessary. Hence, the petitioners may be released on bail.

The learned Public Prosecutor opposed the application. She contended that the petitioners were in conscious possession of the contraband article. The first petitioner is involved in a case of similar nature. The investigation in the case is in progress. Hence, the application may be dismissed.

After bestowing my anxious consideration to the materials placed on record, particularly taking note of the fact that the petitioners have been in judicial custody since 20.12.2023, that the recovery has been effected, and that the investigation in the case is practically complete, not withstanding the rigour under Section 41 A of the Abkari Act, I am of the view that the petitioners’ continued detention is not necessary, because there is no likelihood of the petitioners committing a similar offence while on bail. Hence, the petitioners are entitled to be released on bail.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond;

(v) 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.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) 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 another [2020 (1) KHC 663].