'Jail Is Jail': Kerala High Court Asks State To Pay ₹2.5 Lakhs To Two Persons Falsely Implicated & Detained For Over 50 Days

The Kerala High Court on Tuesday asked the State government to pay an amount of Rs. 2.50 lakhs each to two persons who were falsely implicated in Abkari cases and thereby confined for over 50 days.

Justice P.V. Kunhikrishnan observed that if it is subsequently found that confinement was illegal and the person was falsely implicated, it is a clear case of infringement of the fundamental right guaranteed under Article 21 of the Constitution and that in such situations, the Court should step in and compensate the aggrieved party.

"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 petitioners were arrested and in confinement for more than 50 days in connection with two separate Abkari cases. They were subsequently found to be innocent and were exonerated by the investigating agency by filing subsequent reports before the Court concerned.

Advocates Sabu George and R.Reji appeared for the petitioners and sought compensation from the State for the infringement of their fundamental rights under Article 21. They argued that the petitioner's personal liberty was illegally restrained by the officials of the State and in such circumstances, the State is bound to pay compensation to the petitioners.

However, Senior Government Pleader Deepa Narayanan asserted that the State was not responsible for paying compensation to the petitioners because it was only a dereliction of duty on the part of certain excise officials and that appropriate disciplinary proceedings were already taken against them.

Moreover, the Government Pleader submitted that the Court may not entertain such petitions under Article 226 since the State may not be able to adduce evidence to substantiate their case and added that petitioners should file a suit before the Civil Court so that both parties will get an opportunity to adduce evidence.

Advocates H.B.Shenoy, Mathew B. Kurian and C.Unnikrishnan appeared for the other respondents. 

The Court noted that 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

Further, Article 9(5) of the International Covenant on Civil and Political Rights, 1966 states that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Although India has not endorsed this Covenant, the Judge noted that the apex court had approved the above right in a catena of decisions.

In the present case, it was clear that the enquiry officer had implicated the petitioners falsely. In such circumstances, it was held that no further evidence was necessary to determine a violation of Article 21. 

Since it was clear that Article 21 was infringed in these cases, Justice Kunhikrishnan found that the State is bound to pay compensation to the petitioners and that the same should be recovered from the persons responsible for the illegal confinement, adding that the tax-paying citizens should not be burdened with this liability. 

Regarding the quantum of compensation, the Court said that it should be fixed considering the facts and circumstances of each case. It was also found that the compensation cannot be fixed in tune with the mental trauma faced by the petitioners in these cases through money.

Mahatma Gandhi shared his jail experience in these words: "Men in prison are "civilly dead" and have no claim to any say in policy". Nelson Mandela, the great fighter against apartheid, described his prison life in the following words: "No one truly knows a nation until one has been inside its jail. A nation should not be judged by how it treats its highest citizens, but its lowest ones". An American journalist by the name of Mumia Abu Jamal said the following about his prison life: "Prison is a second-by-second assault on the soul, a day to-day degradation of the self, an oppressive steel and brick umbrella that transforms seconds into hours and hours into days."

Therefore, the State was directed to pay an amount of Rs.2,50,000/- each to the petitioners and the petitioners were granted the liberty to approach the competent civil court if they were entitled to more compensation in the peculiar facts and circumstances of the cases.

Significantly, the Court also addressed a serious question concerning the search, seizure, arrest etc: in abkari cases in the State and opined that the State Government should take serious note of the same.

This Court while hearing criminal appeals against conviction and sentence imposed by the trial court, it could be seen that 50% of the cases are with same stereotype allegations, it said. In most cases, the accused were said to be caught by the Excise Officers while proceeding in a jeep and finding them approaching from the opposite side carrying a can containing the contraband. Upon seeing the officers, the persons are said to have attempted to flee but were caught by the officers. This has been a regular pattern in several Abkari cases, the Court noted. 

Therefore, it was found that a detailed study or enquiry by a competent person appointed by the State was necessary on 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 noted that this was imperative since the sentence that can be imposed in abkari cases is severe and that Section 41A of the Abkari Act contemplates serious restrictions for granting bail to an accused.

"Once an allegation is raised against the accused in an Abkari case, the jurisdiction of the Court to release the accused is very limited. This Court and the Sessions Court invoke the powers under Section 438 Cr.P.C only rarely in Abkari cases. Of course, these restrictions were imposed because of the serious nature of the offence and to eradicate the illicit manufacture of liquor. But in such situation, there cannot be any false implications against innocent persons due to private disputes."

The Judge found that if an abkari officer has personal scores to settle with a person, he can easily implicate them as an accused if this system was allowed since unlike in the cases of narcotic drugs, a search of the accused is not necessary in the presence of a gazetted officer.

However, it was emphasised that as per Section 36 of the Abkari Act, a search should be conducted as per CrPC, provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.

The Court said that if a study is conducted on the disposed Abkari matters, it would come out that in a majority of cases, the independent witnesses turned hostile. When the independent witnesses turn hostile in almost all cases, this is a serious concern that is to be looked into by the Government and legislature.

Therefore, the manner in which the search, seizure and investigation of the Abkari cases is conducted in the State was to be revisited by the Government/Legislature by conducting an appropriate study or enquiry and based on the same, if necessary, should make appropriate amendment in the Abkari Act.

Although it noted that the Court cannot direct the Legislature to draft a legislation, it raised serious concerns to be looked into by the Government and Legislature.

As such, while allowing the petitions, a copy of this judgment was directed to be forwarded to the Chief Secretary to Government for a detailed study/enquiry and an action taken report should be submitted before this Court by the State within six months.

Case Title: Anil Kumar A.B. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 163

Click Here To Read/Download The Judgment