IMPORTANT POINT
Bail is the rule and jail is the exception; police must justify the necessity of arrest, especially when the maximum punishment is less than seven years.

ORDER :

1. This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioners are the accused in Crime No.88 of 2024 of Alathur Excise Range, Palakkad. The above case is registered against the petitioners alleging offences punishable under Section 67B, 57(a) and 56(b) of the Kerala Abkari Act.

3. The prosecution case is that on 24.05.2024, the excise party attached to the Mobile Liquor Testing Laboratory, took samples from toddy, which was transported in a Mahindra Bolero pick up van. On 28.05.2024, when the samples were analysed, it was found that the said toddy was containing the traces of sodium lauryl sulphate. Hence it is alleged that the accused committed the offence.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. Counsel for the petitioners submitted that the allegation that the petitioners committed the offence under Section 57(a) of the Abkari Act is not correct. According to the petitioners, the vessels in which the toddy is stored is washed using detergent. Sodium lauryl sulfate is a content of the detergent. There is no mixing of Sodium lauryl sulfate in the toddy as alleged. The counsel also submitted that, all these cases are registered based on an inspection and seizure of samples on a particular day. There is no other criminal antecedents to the petitioners.

6. Public Prosecutor opposed the bail application. The Public prosecutor submitted that the 1^st petitioner is the driver and petitioners 2 to 5 are the licensees of group Nos. I, II and V of Karunagappally Excise Range and Group No.IV of Sasthamcotta Excise Range.

7. This Court considered the contentions of the petitioners and the Public Prosecutor. I think there is force in the argument of the Public Prosecutor. But the fact remains that the maximum punishment that can be imposed for the offence alleged under Section 57(a) of the Abkari Act is 5 years. The Apex Court in Arnesh Kumar v. State of Bihar and Another [2014 (8) SCC 273] observed that, even while considering an application for anticipatory bail, the court should take a lenient view if the punishment that can be imposed is only up to 7 years. It will be better to extract the relevant portion of the above judgment:

“7. xxxxxxxxx

7.1. From a plain reading of the aforesaid provision, it is evident that all person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case, or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer, or unless such accused person is arrested, his conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has comm