Shaby vs State Of Kerala

This Bail Application is filed under Section 438 of the Code of Criminal Procedure.

The petitioner is the accused in Crime No.31/2021 of the Adoor Excise Range. The offence alleged against the petitioner is punishable under Section 55(i) of the Abkari Act.

The prosecution case is that on 01.02.2021 at 12.30 p.m., the petitioner was found in possession of 800 ml. of Indian Made Foreign Liquor at Adoor. On seeing the excise party, the petitioner ran away from the place of occurrence.

The case of the petitioner is that he is absolutely innocent and that he has not committed any offence as alleged.

Heard the learned Public Prosecutor and the learned counsel for the petitioner.

The learned Public Prosecutor opposed the application seeking anticipatory bail. The learned Public Prosecutor submitted that the petitioner has direct involvement in the crime and that he had possessed the contraband article in violation of the provisions of the Abkari Act.

The learned Public Prosecutor relying on Section 41A of the Abkari Act submitted that the rigor contained in the provision is applicable in the granting of anticipatory bail. As per Section 41A of the Act, if the Public Prosecutor opposes the bail application, the court must satisfy that there are reasonable grounds for believing that the accused is not guilty of such offence and only then can bail be granted. So, as far as the petitioner is concerned, the twin conditions which really have relevance are: (i) The satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and (ii) that he is not likely to commit any offence while on bail. These conditions are cumulative and not alternative. It is pertinent to note that the satisfaction contemplated in the provision regarding the accused being not guilty has to be based on reasonable grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.

Having gone through the records, I am of the view that the limitations in granting bail as contained in Section 41A of the Abkari Act are applicable to the present situation and the petitioner is not entitled to the discretionary relief contained in Section 438 of the Code of Criminal Procedure.

In view of the above circumstances, the petitioner is not entitled to Anticipatory Bail.

Therefore, the Bail Application is disposed with the following directions:-

i) The petitioner shall surrender before the Investigating Officer within 7 days from this day.

ii) After interrogation, if the petitioner is to be arrested, the Investigating Officer shall produce him before the jurisdictional Court.

iii) The petitioner will be at liberty to apply for regular bail which will be considered by the jurisdictional Court on its merits and dispose it of preferably on the same day.