Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 7TH DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 CRIME NO.74/2024 OF PARAPPANANGADI EXCISE RANGE OFFICE, MALAPPURAM AGAINST THE ORDER/JUDGMENT DATED 24.06.2024 IN CRMC NO.796 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI ARISING OUT OF THE ORDER/JUDGMENT DATED 08.07.2024 IN CRMC NO.862 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER: RAJESH KUMAR , AGED 45 YEARS S/O CHERIYAKKAN, PERUNTHODI KALLU VALAPPIL HOUSE FEROKE,KOZHIKODE DISTRICT., PIN - 673631 BY ADVS. P.VENUGOPAL SRILAKSHMI T.S. RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 EXCISE INSPECTOR, PARAPPANANGADI EXCISE RANGE OFFICE,PARAPPANANGADI, MALAPPURAM DISTRICT., PIN - 676303 OTHER PRESENT: SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
This application is filed under Sec.483 of the BNSS by the sole accused in Crime No.74/2024 of the Parappanangadi Excise Range Office, Malappuram, which is registered against him for allegedly committing the offences punishable under Secs.55(a), 55(i) and 67B of the Kerala Abkari Act 1 of 1077. The petitioner was arrested and remanded to judicial custody on 03.06.2024.
2. The gist of the prosecution case is that on
03.06.2024, at around 17.40 hrs, the accused was found transporting 111 liters of Indian Made Foreign Liquor in a Autorickshaw bearing registration KL-11-AM/9884. The accused was arrested on the spot with contraband article. Thus, the accused has committed the above offence.
3. Heard Sri.P.Venugopal, learned Senior Counsel appearing for the petitioner and Smt.Seetha S, learned Senior Public Prosecutor.
4. 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. In any given case, the petitioner has been in judicial custody for the last 66 days, the investigation in the case is complete and the Final Report has not been laid. The offences alleged against the petitioner are punishable for a period of ten years, the investigation is complete and the Final Report has not been laid. Therefore, the petitioner is entitled to be released on statutory bail.
5. The learned Public Prosecutor opposed the
application. She submitted that the investigation is in progress. She also stated that the petitioner is a person with criminal antecedence since he is involved in four other crimes of a similar nature. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she does not dispute the fact that the petitioner has been in judicial custody of the last 66 days, the investigation of the case is not complete and the final report has not been laid.
6. The allegation against the petitioner is that
he was found in conscious possession of 111 liters of Indian Made Foreign Liquor, which is in contravention of the provisions in the Act. The fact remains that the petitioner has been in judicial custody of the last 66 days, the investigation of the case is not complete and the offences alleged against the petitioner are punishable up to ten years and final report has not been laid.
7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:-
167. Procedure when investigation
cannot be completed in twenty-four hours. -(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
8. 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).
9. In the instant case, as the petitioner has
been under judicial custody for the last 66 days, the investigation is not complete and the final report has not been laid, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Sec.167(2) of the Code. 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 on every Saturday between 9 a.m. and 11 a.m till the final report is laid. 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 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) 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 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]. sd/- C.S.DIAS JUDGE Nsd APPENDIX OF BAIL APPL. 5972/2024 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE ORDER DATED 24-06-2024 IN CRL.M.C.NO.796/2024 PASSED BY THE COURT OF SESSION, MANJERI DIVISION Annexure 2 TRUE COPY OF THE ORDER DATED 08-07-2024 IN CRL.M.C.NO.862/2024 PASSED BY THE COURT OF SESSION, MANJERI DIVISION