IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 23^RD DAY OF JULY 2025 / 1ST SRAVANA, 1947 BAIL APPL. NO. 8063 OF 2025 CRIME NO.26/2025 OF PAZHAYANNUR EXCISE RANGE OFFICE, THRISSUR PETITIONER(S)/ACCUSED:

JOSE AGED 73 YEARS S/O. MATHAI, KALLOLIKKAL HOUSE, PANGARAPILLY, KALIYA ROAD P.O., THRISSUR, PIN - 680586 BY ADVS.

SRI.C.HARIKUMAR SMT.SANDRA SUNNY SHRI.ARUN KUMAR M.A SMT.FARAH JYOTHI PRADEEP SMT.AISWARIYA V.R.

RESPONDENT(S)/STATE:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN – 682031.

SRI. NOUSHAD K.A., PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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B.A.No. 8063 of 2025 …………………………………….….

Dated this the 23^rd day of July, 2025

ORDER

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

2. Petitioner is the accused in Crime No. 26/2025 of Excise Range Office, Pazhayannur, Thrissur, registered alleging offence punishable under Section 55(g) of the Abkari Act, 1077.

3. According to the prosecution, on 18.03.2025, 320 litres of wash were seized from the property of the accused, allegedly kept by him for the illicit distillation of arrack, and thereby committed the offences alleged.

4. Sri. C.Harikumar, the learned counsel for the petitioner relying upon the decision in Mathew v. State of Kerala in B.A. No.5608 of 2021, submitted that, in the absence of any statutory minimum substantive sentence that can be imposed under section 55(g) of the Abkari Act, the rigour under Section 41A of the said Act is not attracted. It was also submitted that in Mohd. Muslim alias Hussain v. State (NCT of Delhi) [(2023) 18 SCC 166] as well as in Ragini Dwivedi v. State of Karnataka [(2021) 16 SCC 719], the Supreme Court had observed that the satisfaction required in relation to section 37 of NDPS Act is only a prima facie satisfaction. The learned counsel further submitted that, considering the facts of the case, the petitioner ought to be granted anticipatory bail, especially since his property abuts a forest area and it could have been any other person who engaged in the manufacture of illicit liquor.

5. Sri. Noushad K.A., the learned Public Prosecutor, on the other hand, submitted that the observations in the orders in Mathew v. State of Kerala (supra) has no application in the light of the judgment of the Division Bench of this Court in Asokan v. State of Kerala [1998 (1) KLT 330]. It was also submitted that petitioner ran away from his property when the Excise Officers arrived in the area and the contraband was seized while he was manufacturing illicit liquor. According to the learned Public Prosecutor, unless custodial interrogation is carried out, investigation will be seriously prejudiced.

6. I have considered the rival contentions.

7. Petitioner apprehends arrest for an offence under section

55(g) of the Abkari Act, 1077. Prosecution alleges that while the excise officials came to his property, they found the petitioner manufacturing illicit liquor and they seized 320 litres of wash which were being used to manufacture illicit liquor. However, petitioner fled from the scene and therefore they could not arrest him. Thereafter this application has been filed.

8. Section 41A of Abkari Act states that no person accused of an offence punishable for a term of imprisonment of three years or more under the Act shall be released on bail if the prosecutor opposes the application for such release, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The aforesaid limitations have been incorporated in addition to those limitations under the Code of Criminal Procedure, 1973 or the Bharatiya Nagarik Suraksha Sanhita, 2023, as the case may be.

9. In Mat