VISHNU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the sole accused in Crime No.27 of 2024 registered at the Excise Range Office, Kattakkada for the offence punishable under Sec. 55(i) of the Abkari Act 1 of 1077, now pending as C.P.No.185 of 2024 on the files of the Judicial First Class Magistrate Court, Kattakkada. The crime is registered on the allegation that, on 8/5/2024, at 07:30 pm, the excise party found the petitioner selling Indian Made Foreign Liquor (IMFL) at his rented house and recovered 1 litre of IMFL from his possession. At the investigation stage, the petitioner moved applications seeking pre-arrest bail before the Sessions Court as well as this Court, but the same were dismissed as per Annexures A1 and A2 orders. The petitioner has approached this Court again, this time seeking an opportunity to surrender before the trial court and for a direction to consider his bail application on the day of surrender itself.

(2.) Learned counsel for the petitioner submits that even if this Court directs consideration of his bail application, the Magistrate may hesitate in view of the 2nd proviso to Sec. 232 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('the BNSS' for short). It is then contended that, if the learned Magistrate decides to consider the bail application, that should be based on the nature of allegations and the present circumstances, uninfluenced by the dismissal of his earlier applications for anticipatory bail. To buttress the argument, reliance is placed on the decision of this Court in Sukumari v. State of Kerala [2001 KHC 43].

(3.) The learned Public Prosecutor submitted that the petitioner was absconding throughout the investigation stage and having failed to appear on summons at the committal stage also, is not entitled for any lenient consideration. The learned Public Prosecutor also submitted that the 2nd proviso to Sec. 232 is not an embargo for considering the bail applications filed by the accused.