AKHIL S @ PRASANTH v. STATE OF KERALA

4. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor appearing for the respondent.

5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The petitioner has been falsely implicated in the crime solely based on the extra judicial confession made by his brother, who is at loggerheads with him. There is no material to establish the petitioner's involvement in the crime. A reading of Annexure 2 seizure mahazar would establish that the petitioner has been implicated in the crime solely on the basis of the confession statement made by his brother. Admittedly, the seizure has been effected. Therefore, the petitioner's custodial interrogation is not necessary. The petitioner is BAIL APPL. NO.10986 OF 2023 4 willing to abide by any stringent condition that may be imposed by this Court and also co-operate with the Investigating Officer. The learned counsel relied on the decision of this Court in Suresh v. State of Kerala [2020 (3) KHC 788] to fortify his contention that the onus of proof is on the prosecution to prove the possession, domain and control over the property. He prayed that the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. She contended that the contraband was seized from the house where the petitioner was living. There are incriminating material to establish that the petitioner is actively involved in the crime. If the petitioner is granted an order of pre-arrest bail, it would hamper with the proper and full investigation of the crime. Moreover, the petitioner's custodial interrogation is necessary and recovery is to be effected. The application is hit by the rigour under Section 41A BAIL APPL. NO.10986 OF 2023 5 Act. The petitioner had filed a similar application before the Court of Session, which has been dismissed. Hence, the application may be dismissed.

7. The gravamen of the prosecution allegation is that the excise party conducted a search in the house where the petitioner is living and seized 200 ml of arrack and also 10 litres of wash. The said contraband was stored in contravention of the provisions of the Act. Indisputably, the petitioner had moved Crl.M.P No. 4988/2023 before the Court of Session, Alappuzha. By Annexure 3 order, the learned Sessions Judge had dismissed the application principally on the ground that the application falls within the sweep of Section 41 A of the Act and that the petitioner's custodial interrogation is necessary for proper and full investigation of the crime. BAIL APPL. NO.10986 OF 2023 6

8. Section 41 A of the Abkari Act reads as follows:- [41A. Offences to be cognizable and non- bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of three years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (Central Act, 2 of 1994) or any other law for the time being in force on granting of bail]

9. The above provision explicitly postulates that if the Public Prosecutor opposes an application, then this Court has to be satisfied that there are reasonable BAIL APPL. NO.10986 OF 2023 7 grounds to believe that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail.

10. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate BAIL APPL. NO.10986 OF 2023 8 which we are bound to respect and honour.

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of BAIL APPL. NO.10986 OF 2023 9 Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

126. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under BAIL APPL. NO.10986 OF 2023 10 Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. “

11. In Jai Prakash Singh v. State of Bihar and another [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre- arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty.

12. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and the BAIL APPL. NO.10986 OF 2023 11 findings of the learned Sessions Judge in Annexure 3 order and on comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the investigation of the case is at preliminary state, that the petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am not convinced that the petitioner has diluted the rigour under Section 41A of the Act to hold that he has not committed the offences and is not likely to commit the offences. The petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrender before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional BAIL APPL. NO.10986 OF 2023 12 Court on the date of surrender itself. Then, if the petitioner move application for bail, the jurisdictional Court shall consider the bail application on its merits. Sd/-C.S.DIAS JUDGE