Kerala High Court
Saiju vs State Of Kerala on 29 July, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
BAIL APPL. NO. 8713 OF 2025
1
2025:KER:56124
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
BAIL APPL. NO. 8713 OF 2025
CRIME NO.38/2024 OF KODUNGALLUR EXCISE RANGE OFFICE, THRISSUR
AGAINST THE ORDER/JUDGMENT DATED 19.06.2025 IN BAIL APPL.
NO.6974 OF 2025 OF HIGH COURT OF KERALA
PETITIONER(S)/ACCUSED NO.1:
SAIJU
AGED 54 YEARS
S/O. DIVAKARAN, PUTHENTHARA HOUSE,
MURINGOOR DESOM, MURINGOOR-VADAKKUMMURI
VILLAGE, CHALAKKUDY TALUK, THRISSUR
DISTRICT., PIN - 680309.
BY ADVS.
SRI.NIREESH MATHEW
SRI.VIVEK VENUGOPAL
SRI.BABU JOSE
SHRI.GAJENDRA SINGH RAJPUROHIT
SHRI.AKHIL GEORGE
SHRI.ATHUL POULOSE
RESPONDENT(S)/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI., PIN - 682031.
BY SRI. NOUSHAD K. A., PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2025,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BAIL APPL. NO. 8713 OF 2025
2
2025:KER:56124
BECHU KURIAN THOMAS, J.
......................................................
B.A. No.8713 of 2025
...................................................
Dated this the 29th day of July, 2025
ORDER
This bail application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS').
2. Petitioner is the first accused in C.R.No.38/2024 of Kodungallur Excise Range Office, Thrissur, registered for the offences punishable under Sections 55(a) and 56(b) of the Abkari Act, 1077.
3. The prosecution case is that, on 25.03.2024, during a routine search at toddy shop No.41/2023-2024, Pozhamkavu Toddy Shop, the accused were found to be in possession of 588 litres of toddy mixed with spirit and thereby committed the offences alleged. Petitioner was arrested on 26.06.2025 and he has been in custody since then.
4. Heard Sri.Vivek Venugopal, the learned Counsel for the petitioner as well as Sri.Noushad K.A., the learned Public Prosecutor.
5. The learned counsel for the petitioner contended that the detecting officer had taken only one sample from each of the containers in violation of the mandatory provisions of Rule 8(2) and 8(3) of the Kerala Abkari Shops Disposal Rules, 2002. Referring to the decision in Girish BAIL APPL. NO. 8713 OF 2025 3 2025:KER:56124 Kumar and Another v. State of Kerala 2010 (3) KLT 95, it was submitted that in the absence of a second sample, the seizure of the contraband, and the subsequent chemical analysis, and the proceedings initiated against the petitioner must fail. It was also submitted that petitioner has been in custody from 26.06.2025, and having regard to the nature of allegations, petitioner ought to be released on bail.
6. The learned Public Prosecutor opposed the bail application and referred to the decision in Santhosh T.A. and Another v. State of Kerala 2017 (5) KHC 107 which came to a different conclusion by observing that there is no provision in the Act directing taking of at least two samples. It was also submitted that in Krishnan M.C. and Another v. State of Kerala and Another 2021 (2) KHC 395 a Division Bench of this Court was called upon to consider the divergent views taken by the single Bench. After an elaborate consideration the Court upheld the decision in Santhosh's Case (supra) as good law and held that the decision in Girish Kumar's Case (supra) was not good law and hence reliance upon the decision in Girish Kumar's case (supra) is misplaced.
7. I have considered the rival contentions.
8. In Krishnan M.C. and Another v. State of Kerala and Another 2021 (2) KHC 395, after elaborately considering various decisions, the court came to the conclusion that the accused has no legal or statutory right to make a request for sending the second samples for analysis. The decision in Girish Kumar's case (supra) was held to be no longer a BAIL APPL. NO. 8713 OF 2025 4 2025:KER:56124 good law. It was also observed that the principle laid down in Santhosh T.A. and Another v. State of Kerala 2017 (5) KHC 107 was the correct law. Thus it cannot be held prima facie that the procedure adopted by the detecting officer is illegal. Even if it is assumed to be illegal, those are matters to be considered at the time of trial. Hence, the prayer for bail on the basis of illegality in taking the sample is rejected.
9. However, petitioner has been in custody from 26.06.2025. The allegations, though serious in nature, no antecedents have been reported against the petitioner. Considering the period of detention already undergone, I am of the view that further custody of the petitioner is not necessary.
10. In the result, this bail application is allowed on the following conditions:-
(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.
(b) Petitioner shall appear before the Investigating officer as and when required.
(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.
(d) Petitioner shall not commit any similar offences while he is on BAIL APPL. NO. 8713 OF 2025 5 2025:KER:56124 bail.
(e) Petitioner shall not leave the country without the permission of the jurisdictional Court.
In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications, if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.
Sd/-
BECHU KURIAN THOMAS JUDGE AMV/29/07/2025 BAIL APPL. NO. 8713 OF 2025 6 2025:KER:56124 APPENDIX OF BAIL APPL. 8713/2025 PETITIONER ANNEXURES ANNEXURE 1 TRUE PHOTOCOPY OF THE MAHAZAR DATED 25.03.2024.
ANNEXURE 2 TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT IN C.R NO. 38/2024 OF KODUNGALLUR EXCISE RANGE.
ANNEXURE 3 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 12.02.2025 IN SPECIAL LEAVE TO APPEAL (CRL) NOS. 15721-15746/2024.
ANNEXURE 4 TRUE PHOTOCOPY OF THE ORDER DATED 30.06.2025 IN CRL.MP.NO.2756/2025 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT, KODUNGALLUR.