IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 5^TH DAY OF MAY 2023 / 15TH VAISAKHA, 1945 BAIL APPL. NO. 1088 OF 2023 (CRIME NO.1088 OF 2023 OF NEDUMANGAD EXCISE RANGE OFFICE, THIRUVANANTHAPURAM) PETITIONER/ACCUSED:

JOSE PRAKASH AGED 41 YEARS S/O DEVADASASN, ANANDA BHAVANAM, KUNOOR, ZION KUNNU, VEMBAYAM, THEKKADA VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, PIN - 695541 BY ADV LATHEESH SEBASTIAN RESPONDENT/STATE AND COMPLAINANT:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR SMT.NIMA JACOB-GP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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B.A.No.1088 of 2023 ------------------------------------------------

Dated this the 5^th day of May, 2023

ORDER

This bail application filed under Section 438 of Criminal Procedure Code (Cr.P.C)

2. Petitioner is the accused in Crime No.7/2023 of Nedumangad Excise Range, Thiruvananthapuram District. The offences alleged against the petitioner are under Sections 55(i)

and 67B of the Abkari Act.

3. The prosecution case is that the petitioner was found selling Indian made Foreign Liquor at about 8 a.m. on 23.01.2023 by sitting in his bike parking in a road margin. Two bottles of Indian Made Foreign Liquor of 500 ml was seized from petitioner is the case of the prosecution.

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

5. Learned Counsel for the petitioner submitted that even if the prosecution case is accepted, no offence under the Abkari Act is made out. It was further submitted that petitioner has not committed any offence. Learned Public Prosecutor opposed grant of bail and submitted that petitioner was selling Indian Made Foreign Liquor,which would attract Section 55(i) of the Abkari Act.

6. This Court considered the contention of the petitioner and the learned Public Prosecutor. Simply because some Indian Made Foreign Liquor is seized from the possession of the petitioner, the offence under Section 55(i) of the Abkari Act is not made out unless there is evidence to show that the petitioner was selling the Indian Made Foreign Liquor. If only two litrers of Indian Made Foreign Liquor is seized as alleged by the petitioner from him that quantity is permissible even as per the Abkari Act. However, whether the petitioner committed the offences as alleged is a matter of investigation. Therefore, I am of the view that custodial interrogation is not necessary in this case. Accordingly, petitioner can be directed to appear before the investigating ofÏcer and the investigating ofÏcer is free to interrogate the petitioner. Petitioner shall appear before the investigating ofÏcer every week till the final report is filed. With that rider, this bail application is allowed.

7. Considering the facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.

8. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial.

9. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall appear before the Investigating OfÏcer within ten days from today and shall undergo interrogation;

2. After interrogation, if the Investigating OfÏcer proposes to arrest the petitioner she shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent