The court emphasized that mere possession of prohibited items without evidence of sale to minors does not warrant custodial interrogation, establishing grounds for bail.

ORDER

This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).

2. Petitioners are accused 2 and 5 in Crime No. 668/2025 of Mannarkkad Police Station, Palakkad, registered alleging offences punishable under Sections 125 of the Bharatiya Nyaya Sanhita, 2023 (for short ‘ BNS ’), Section 6 r/w Section 24 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 – hereinafter referred to as ‘COTPA’, Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also Section 118 (i) of the Kerala Police Act .

3. According to the prosecution, on 23.06.2025, at 10.30 p.m. in the night, on getting secrete information that in a godown at Karimbuzha, prohibited tobacco products are stored, the police party proceeded and seized pan masala, gudka and raw materials for the production of tobacco products and thereby committed the offences alleged.

4. I have heard Sri. Babu S. Nair, the learned counsel for the petitioners as well as Smt. Sreeja V., the learned Public Prosecutor.

5. The prosecution alleges that the accused had kept prohibited tobacco items for the purpose of sale to children in a godown and thereby committed the offences alleged. Out of the offences alleged, except Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, JJ Act), all others are bailable offences. Section 77 of the JJ Act applies only when the accused gives or attempts to give to any child any intoxicating liquor or any narcotic drug or any tobacco products. In the decision in 2022 (1) KLJ 855 in Abhijith v. State of Kerala , it has been held that merely storing or keeping tobacco products in the house of the accused would not constitute an offence.

6. In Ashok Kumar v. State of Union Territory Chandigarh [2024 SCC OnLine SC 274] , it has been held that a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient and that the State would have to show or indicate more than prima facie case as to why custodial investigation of the accused is required for the purpose of investigation.

7. In the instant case, prima face the allegations only indicate that the accused had kept tobacco products in the godown. There is nothing collected so far to indicate that there was any sale to any juvenile. In such circumstances, I am of the view that the petitioners ought to be released on pre-arrest bail on conditions.

8. Accordingly, this application is allowed on the following conditions:

(a) Petitioners shall appear before the Investigating Officer on 25.07.2025 and shall subject themselves to interrogation.

(b) If after interrogation, the Investigating Officer proposes to arrest the petitioners, then, they shall be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum before the Investigating Officer.

(c) Petitioners shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

(d) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.

(e) Petitioner shall not commit any similar offences while they are on bail.