Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 28TH DAY OF APRIL, 2020 /8TH VAISAKHA, 1942 CRIME NO 29/2020 OF EXCISE RANGE, CHERTHALA, ALAPUZHA DISTRICT PETITIONER/ACCUSED: SHRI. MOHISH, AGED 37 YEARS, S/O MOHANAN, PUTHENTHAYYIL VEEDU, MUHAMMA PANCHAYATH, WARD NO. IX, THANNEERMUKKAM SOUTH VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. A.A JALEEL RESPONDENTS/COMPLAINANT:
1. STATE OF KERALA REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2.THE EXCISE INSPECTOR, EXCISE RANGE, CHERTHALA, ALAPPUZHA DISTRICT. BY PUBLIC PROSECUTOR SRI.BINEESH E.C. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This is an application filed under Section 439 of the Code of Criminal Procedure.
2. The petitioner is the accused in Crime No.29 of 2020 of the Excise Range, Cherthala. The petitioner is alleged to have committed the offences punishable under Sections 8(1) &
(2) and 55 (g) of the Kerala Abkari Act.
3. The prosecution case, in brief, is that: the Excise party on 08.04.2020 found the petitioner in possession of five
litres of arrack. The arrack and equipments used for manufacturing, were seized from the kitchen area of the petitioner's residential building. Thus, the petitioner has
committed the above offences.
4. The petitioner was arrested on 08.04.2020. His application for bail was dismissed by the Judicial First Class Magistrate-II, Cherthala.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing.
6. The learned counsel for the petitioner argued that
the petitioner is innocent of the accusations levelled against him. The petitioner has not committed the offence as alleged in the FIR. The petitioner is in custody for the last 20 days. The investigation in the case is practically completed. The petitioner's continued detention is unnecessary. Hence, the petitioner may be enlarged on bail.
7. The learned Public Prosecutor opposed the application.
8. The Hon'ble Supreme Court in Sanjay Chandra v. CBI [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the
rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution".
9. Recently, the Honourable Supreme Court in Nikesh Tarachand Shah v. Union of India [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in Sanjay Chandra v. CBI (supra). Again, in P.Chidamabram v. Directorate of Enforcement [(2019) SCC Online SC 1549] the above proposition has been fortified.
10. After the outbreak of the Novel Corona Virus (COVID
-19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the Home Department, Government of Kerala has promulgated
order dated 25.03.2020, inter alia, directing the release of
under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to de- congest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception.
11. Having regard to the facts and circumstances of the
case, particularly the fact that the petitioner has been in incarceration for the last 20 days; that the investigation in the case is practically complete; that the petitioner's continued detention is unnecessary, the legal proposition laid down by the Honourable Supreme Court in the afore cited decisions; and the directions of the Hon'ble Supreme Court and a Full Bench of this Court to; decongest prisons in view of Covid-19 pandemic, I am inclined to allow this bail application. .
12. In the result this bail application is allowed, on the following conditions:-
(i) Due to the present National lock-down and
the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate
relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its re-opening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner.
(ii) The petitioner shall within one week from
the re-opening of the jurisdictional Court, if not already re-opened, execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.
(iii) The petitioner shall appear before the Investigating Officer on all Wednesdays and Saturdays between 10.00 a.m and 11 a.m till final report is filed.
(iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever.
(v) The petitioner shall not commit any offence while on bail.
(vi) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court.
(vii) Needless to mention that, if the petitioner
violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. Sd/- C.S.DIAS, JUDGE kkj