Bail under Abkari Act difficult but search and seizure procedure does not have same rigours as NDPS Act: Kerala High Court orders study by State

The Kerala High Court on Tuesday ordered the State government to pay ₹2.5 lakh each as compensation to two men who were jailed for over 50 days each on false charges under the Abkari Act. [Anilkumar AB v State of Kerala & Ors.].Justice PV Kunhikrishnan observed that such confinement would be a clear infringement of the fundamental rights guaranteed under Article 21 of the Constitution. The High Court held that in such circumstances, it must proceed further and give compensatory relief not by way of damages as in a civil action but by way of compensation under the public law jurisdiction."It is a settled position that, when the infringement of the fundamental right is established, the Constitutional Court should not stop by giving a mere declaration; it must proceed further and provide compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done due to breach of public duty by the State for not protecting the fundamental right to the life of the citizen," the Court said in its judgment. .The High Court awarded the compensation upon considering two petitions moved by men who had been in confinement for more than 50 days in connection with two separate Abkari cases.Both men were subsequently found to be innocent and exonerated after the investigating agency filed reports to that effect before the trial court..Pertinently, the Court also made some significant observations about the Abkari Act, particularly regarding severe restrictions on bail under the Act notwithstanding the fact that the procedure for search and seizure doesn't have the same rigour as that under a similar statute like the Narcotic Drugs and Psychotropic Substances (NDPS) Act.Justice Kunhikrishnan opined that a majority of the cases registered under the Abkari Act usually follow a stereotypical set of allegations.In the case of the two petitioners too, the allegations were similar and after further investigation, the Excise officials found beyond any reasonable doubt that the allegation against the petitioners were false and it was a foisted case against the petitioners at the instance of their enemies."Now, if an Abkari officer is having enmity with a person, he can easily implicate that person as an accused if there is a bottle and small quantity of illicit liquor. These two cases are the classic examples in which two innocent citizens were implicated falsely in an Abkari case," the Court said.The Court noted that the sentence that can be imposed by the Court in Abkari cases is severe. Section 41A of the Abkari Act contemplates serious restrictions for granting bail to an accused.Therefore the Court directed the State government to conduct a study into the situation and file an action taken report on the same within a period of six months."In such situation, in my opinion, a detailed study or enquiry is necessary by a competent person appointed by the State about the manner in which arrest, seizure, investigation, etc in abkari cases have been made at least for the last 5 years and whether there is any further change in the mode of investigation is necessary," the Court ordered..The petitioners, represented by advocates Sabu George and R Reji, approached the High Court claiming compensation from the State for the infringement of their fundamental rights under Article 21 of the Constitution.However, Government Pleader Deepa Narayanan argued that the State is not responsible for paying compensation to the petitioners because it is only a dereliction of duty on the part of certain excise officials against whom disciplinary proceedings have been initiated. She argued that the High Court may not entertain the petitions when an effective alternative remedy exists and the petitioners can approach a civil court where evidence can be adduced. .After examining a catena of decisions of the Supreme Court, the High Court opined that if the fundamental right of a citizen guaranteed in the Constitution is found to be infringed, constitutional courts not only have the power to proceed beyond a declaration but also have a duty to grant compensation.Since the petitioners were incarcerated on false charges, there is a clear violation of Article 21 and therefore, the Court stated that the State is bound to pay compensation to the petitioners and that appropriate amount would be ₹2.5 lakh each.The single-judge ordered the State to recover the amount payable to the petitioners from the persons who have been identified as being responsible for the illegal confinement."The tax paying citizens should not be burdened with this liability. Therefore, the State should pay the amount and should take appropriate steps to recover the same from the parties who are responsible for the registration of the cases against the petitioners and who are responsible for the illegal confinement of the petitioners by infringing the personal liberty of the petitioners", the Court said. .The judgment was also replete with quotes by Mahatma Gandhi, Nelson Mandela and American journalist Mumia Abu Jamal about the trials and tribulations they suffered during the time they spent in prison.The Court opined that no one who has not been in jail, can imagine the trauma of being incarcerated."A man in jail alone will know the trauma faced by him. Even if the jail is constructed with beautiful walls and contain a good atmosphere, it is not a consideration at all for fixing compensation, because jail is always jail," the Court said.That being the case, the Court conceded that it may not be able to fix compensation exactly in tune with the mental trauma the petitioners faced. However, it ordered the State to pay both men ₹2.5 lakh each and also granted them liberty to approach civil court for further compensation.

Bail under Abkari Act difficult but search and seizure procedure does not have same rigours as NDPS Act: Kerala High Court orders study by State

Giti Pratap

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