O R D E R

The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime No.110/2023 of the Karthikapally Excise Range, Thrissur, registered against him for allegedly committing the offences punishable under Sections 58 and 55 (i) of the Kerala Abkari Act 1 of 1077.

3. The crux of the prosecution case is that; on

15.8.2023, at around 6 p.m., on the basis of a secret information, the Excise party searched the house of the accused and seized 31 bottles of Indian Made Foreign Liquor (IMFL), each containing 750 ml, meant for sale in the State of Karnataka. Thus, the accused has committed the above offence.

4. Heard Sri. S.Gokul Babu, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The petitioner is serving in Border Security Force (BSF) as an Assistant Sub Inspector at BSF station, Thiruvananthapuram. The officials of the BSF are allotted a monthly quota of 8 bottles of IMFL from their canteen. The petitioner was engaged in Dar run duty and had to travel between Thiruvananthapuram and Banglore. The liquor is booked through an online portal named Centralized Liquor Management System. The petitioner had purchased his quota from the canteen at Bangalore. From the month of March, 2023, the petitioner has lowered his consumption of alcohol due to an ailment. Therefore, he had additional liquor bottles in his house. On the request of his retired colleague named Kesavankutty, the petitioner had availed his quota also and kept it in his house. It was at that time, the Excise party conducted the search and seized the IMFL bottles from the petitioner’s residence. Although the petitioner had approached the court of Session with a similar application, the same was dismissed by Annexure 6 order. The petitioner has not committed any offence as alleged by the prosecution. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. The petitioner is ready to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. He contended that a huge quantity of IMFL i.e., 23.25 litres was seized from the inbuilt drawer of the cot of the petitioner in his house at Pallipad Village, Karthikappalli. The IMFL was meant for sale only in the State of Karnataka. The investigation in the case is at its nascent stage. The petitioner’s wife and child have confessed that the stored IMFL was meant for sale. The application is hit by the rigour under Section 41 A of the Abkari Act. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed.

7. The prosecution allegation is that on 15.8.2023, the Excise party searched the house of the petitioner, and seized 23.25 litres of IMFL, which was meant for sale in the State of Karnataka.

8. Section 41 A of the Abkari Act reads as follows:-

[41A. Offences to be cognizable and non-bailable. - (1)

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of three years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes the application, the court is satisfied that the