An accused has an indefeasible right to bail if not charged within 60 days of custody, as per Section 167(2) of the Code of Criminal Procedure.

O R D E R

Dated this the 30th day of August, 2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023, by the third accused in Crime No.66/2024 of the Excise Range Office, Thrissur, which is registered against the four accused persons for allegedly committing the offences punishable under Sections 55 (a), 58, 58B & 67 of the Kerala Abkari Act ,1 of 1077(in short, ‘Act’). The petitioner was arrested and remanded to judicial custody on 29.06.2024.

2. The essence of the prosecution case is that: on 29.06.2024, at around 09:30 hours, the accused Nos.1 to 4 were found in conscious possession of 1551 litres of spirit, which was being transported in vehicles bearing registration Nos.KL-39-K 2816 &

KL-41-G-4820. The accused were arrested on the spot with the contraband article. Thus, the accused have committed the above offences.

3. Heard; Smt.K.Rajeswary, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to show that the petitioner has committed the above offences. In any given case, the petitioner has been in judicial custody for the last 60 days, the investigation in the case is not complete, the offences alleged against the petitioner are punishable for a period up to 10 years, and the final report has not been laid. Hence, the petitioner is entitled to be released on statutory bail as contemplated under sub-section (2) of Section 167 of the Code. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a very serious offence by transporting a huge quantity of contraband. Therefore, the application is hit by Section 41A of the Act. She also stated that if the petitioner is let off on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner has been in judicial custody for more than 60 days, the offences alleged against the petitioner are punishable for a period up to 10 years, the investigation in the case is not complete, and the final report has not been laid.

6. The prosecution allegation against the accused is that, they were found in conscious possession of 1551 litres of spirit, which were being transported in vehicles. Admittedly, the petitioner has been in judicial custody since 29.06.2024, which is more than 60 days, the investigation in the case is not complete, the offences alleged against the petitioner are punishable for a period up to 10 years, and the final report has not been laid.

7. Subsection (2) of Section 167 of the Code of Criminal Procedure , 1973 reads as follows:-

167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused t