Allowed

Pushpangadan v. State of Kerala

Kerala HC12 Jun 2018Bail Appl./2302/2018

Case brief

AI extract

What is this about?

The Kerala High Court granted anticipatory bail to an accused alleged to have stored wash for distillation under the Abkari Act. The court noted prima facie doubts regarding procedural lapses in the search and destruction of seized evidence, finding custodial interrogation unnecessary.

What did the court decide?

Application allowed; custodial interrogation held unnecessary; bail granted conditioned upon cooperation, non-interference with witnesses, and surrender of passport.

Pushpangadan Vs State of Kerala — Anticipatory Bail | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940

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Bail Appl..No. 2302 of 2018

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CRIME NO.11/2018 OF KUTHIYATHODE EXCISE RANGE OFFICE, ALAPPUZHA

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PETITIONER(S)/ACCUSED:

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PUSHPANGADAN, S/O. RAGHAVANA, ASHWATHI NILAYAM, KAKKATHURUTHU MURI, EZHUPUNNA VILLAGE, CHERTHALA.

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BY ADV.SMT.D.LEEMA ROSY

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RESPONDENT(S)/STATE:

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1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031 (CRIME NO. 11/2018 OF KUTHIATHODU EXCISE RANGE)

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2. EXCISE RANGE INSPECTOR, KUTHIATHODU EXCISE RANGE, ALAPPUZHA DISTRICT PIN 688 533 (CRIME NO. 11/2018 OF KUTHIATHODU EXCISE RANGE)

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BY PUBLIC PROSECUTOR MR. AMJAD ALI

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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KRJ

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RAJA VIJAYARAGHAVAN V., J

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B.A. No.2302 of 2018

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Dated this the 12^th day of June, 2018

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O R D E R

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~~~~~~

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

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The applicant herein is the accused in Crime No. 11/2018 of the Kuthiyathodu Excise Range. In the aforesaid crime, he is accused of having committed offence punishable under Section 55 (g) of the Abkari Act.

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The prosecution allegation is that on 22.1.2018 at 2:30 PM, on the basis of information that the applicant had stored wash meant for distillation of arrack, a search was conducted by the Excise Inspector, Kuthiyathodu in the premises of the residential home of the applicant. He is alleged to have found about 150 liters of arrack stored in the bathroom situated on the northern side of the property. The said bathroom was not attached to the residence. It had an open roof and was not secured. The contraband was seized and after taking samples, the wash was destroyed

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BA.2302 of 2018

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after preparing a report. Neither the applicant nor his family members were present when the search was conducted.

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The learned counsel appearing for the applicant submitted that the entire prosecution allegation against the applicant is without basis. According to the learned counsel, the procedure adopted by the Excise Inspector without complying with Section 53A of the Abkari Act would lend credence to the contention of the applicant that the Wash was not seized from the property of the applicant. Reliance is placed on a decision of this Court in Appu v. State of Kerala [2016 (2) KLD 781] and it was contended that the failure to follow the procedure under Section 53A of the Act scrupulously would affect the very prosecution case. It is further argued that the daughter of the applicant was admitted in the General Hospital, Ernakulam for delivery on 22.1.2018 and she was discharged from the hospital only on 29.1.2018. The applicant and his wife were with their daughter at Ernakulam. It is also possible, according to the learned counsel, that utilizing his absence in his residence, his neighbours, who are not persons with clean

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BA.2302 of 2018

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antecedents, might have secreted the wash in the open bathroom. Finally, the learned counsel submits the applicant is a very sick man and is suffering from cardiac ailments. Reliance is placed on Annexures-3 and 4 to substantiate her point.

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The learned Public Prosecutor has very strenuously opposed the prayer. According to the learned Public Prosecutor, Section 53A, may not strictly apply in cases wherein wash is seized. Referring to the case diary, it is submitted that large quantity of wash was seized from the premises owned by the applicant and it would be too early for the applicant to contend that he is totally innocent. The investigation is still in the early stages and arming the applicant within an order of anticipatory bail would adversely affect the investigation is the submission.

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I have considered the submissions advanced and have gone through the materials on record. Prima facie, it appears that there are some materials in the case diary which would throw some seeds of doubt in the case of the prosecution. Furthermore, the large quantity of wash,

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BA.2302 of 2018

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which was allegedly found in the premises have been destroyed on the date of detection itself. After evaluating the nature and gravity of the allegations against the applicant, the materials in support thereof, the antecedents of the applicant and other facts and circumstances, I am of the considered view that the custodial interrogation of the applicant is not necessitous for an effective investigation.

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In the result, this application will stand allowed. The applicant shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

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(i)The applicant shall co-operate with the investigation and shall appear before the Investigating Officer on every Saturdays between 10 A.M and 1 P.M. for a period of two months or till final report is filed whichever is earlier.

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ii)The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from

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BA.2302 of 2018

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disclosing such facts to the court or to any police officer.

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iii)The applicant shall not commit any similar offence while on bail.

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iv) The applicant shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

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In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.

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Sd/- RAJA VIJAYARAGHAVAN V., J JUDGE

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ps/12/6/18

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//true copy//

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P.S to Judge

Pushpangadan v. State of Kerala

Case brief

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Pushpangadan v. State of Kerala

Case brief

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