An accused has an indefeasible right to be released on bail if the investigation is not completed within the prescribed time limit under Section 167(2) of the Code of Criminal Procedure.

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 , by the sole accused in Crime No.85/2024 of the Kasaragod Excise Range Office, Kasaragode, which is registered against him for allegedly committing the offence punishable under Section 58 of the Kerala Abkari Act, 1 of 1077 . The petitioner was arrested on 09.05.2024.

2. The gist of the prosecution case is that: on 09.05.2024, at around 15:30 hours, the accused was found in conscious possession of 55.08 litres of Indian Made Foreign Liquor, which was meant for sale. The accused was arrested on the spot with the contraband articles. Thus, the accused has committed the above offences.

3.Heard; Sri.T.G.Rajendran, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

4.The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s involvement in the case. The petitioner has been in judicial custody for the last more than 60 days, the investigation of this case is not complete and the final report has not been laid. Hence, the petitioner is entitled to statutory bail.

5.The learned Public Prosecutor opposed the application. He submitted that investigation is in progress. He also stated that the petitioner is a person with criminal antecedence, since he is involved in four other crimes of a similar nature. Therefore, the application is hit by the rigour under Section 41A of the Act. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.

6.The prosecution case is that petitioner was found in conscious possession of 55.08 litres of Indian made foreign liquor. The petitioner was arrested and remanded in judicial custody on 09.05.2024. Indisputably, the Investigating Officer has not laid the final report even after the lapse of 60 days and the offence alleged against the petitioner is punishable for a period of ten years.

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 to be forwarded to a Magistrate having such jurisdiction:

Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the