Sarath M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.62/2024 of the Chelannur Excise Range Office, Kozhikode, registered against him, for allegedly committing the offences punishable under Sections 55(g) and 8(2) of the Kerala Abkari Act, 1 of 1077. The petitioner was arrested on 17.4.2024.

The essence of the prosecution case is that: on 16.4.2024 at around 19.45 hours, the accused was found in possession of 200 litres of illicit arrack, 1400 litres of wash and other equipment, for the purpose of distilling arrack, in the second floor of the house. The accused was arrested with the contraband articles then and there at the spot. Thus, the accused has committed the above offences.

Heard; Sri. Unnikrishnan V Alapatt, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Senior Public Prosecutor.

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. A reading of the materials on record would show that the petitioner has no complicity in the crime. In any given case, the petitioner has been in judicial custody for the last 47 days, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that the contraband involved in the case is of a huge quantity. If the petitioner is released on bail, he would commit a similar offence.

Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner has been in judicial custody for the last 47 days and the petitioner does not have any criminal antecedents.

The prosecution allegation against the petitioner is that he was found in possession of 200 litres of illicit arrack, 1400 litres of wash and other equipments for the purpose of distilling arrack. The fact remains that the petitioner has been in judicial custody since 17.4.2024, that the petitioner does not have any criminal antecedents, that the investigation in the case is practically complete and recovery has been effected. Hence, I am of the view that the petitioner’s further detention is unnecessary.

On a consideration of the facts, rival submissions made across the Bar and the materials placed on record especially considering the fact that the petitioner has been in judicial custody since 17.4.2024, the investigation in the case is complete and the petitioner does not have any criminal antecedents, notwithstanding the rigour under Sec.41A of the Act, I hold that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the application.

In the result, the application is allowed, by directing the petitioner to be released on bail on  him 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 petitioner 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. He shall also 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 them 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) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit 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 filed and entertained before 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 Anr. [2020 (1) KHC 663].