C.S.Dias, J.
1. The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.11/2024 of the Excise Range Office, Bediduka, Kasaragod, registered against him, for allegedly committing the offence punishable under Section 58 of the Kerala Abkari Act,1 of 1077(in short, ‘Act’). The petitioner was arrested on 26.01.2024.
2. The gist of the prosecution case is that; on 26.01.2024, at about 1.00 p.m., the accused was found in possession of 6.48 litres of Indian Made Foreign Liquor (IMFL), meant for sale in Karnataka State. The accused was arrested then and there from the spot. Thus, the accused has committed the above offence.
3. Heard Sri.A. Arunkumar, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent.
4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The petitioner was arrested on 26.01.2024. The investigation in the crime is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail.
5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also submitted that the petitioner is involved in five other crimes of similar nature in the years 2019, 2020 & 2023. Therefore, if the petitioner is released on bail, there is every likelihood of him committing an offence of the similar nature. Hence, the application may be dismissed.
6. In Sanjay Chandra v. CBI [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.
7. In Dataram Singh v. State of U.P. [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.
8. Subsequently, in State of Kerala v. Raneef [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.
9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and taking into account the fact that the petitioner has been in judicial custody since 26.01.2024, that the investigation in the case is practically complete and the recovery has been effected, notwithstanding the rigour under Section 41A of the Act, I am of the definite view that the petitioner’s continued detention is unnecessary. Hence, I am inclined to release the petitioner on bail; but subject to stringent conditions:
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 Tuesday and Friday between 9 a.m. and 11 a.m for a period of two months or till the final report is filed, 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 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 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 another [2020 (1) KHC 663].
