IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4510 of 2007()
1. INDIRA AGED 40 YEARS,
... Petitioner
2. VENU, AGED 48 YEARS,
Vs
1. STATE OF KERALA
... Respondent
2. EXCISE INSPECTOR
For Petitioner :SRI.SHAJI P.CHALY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :31/07/2007
O R D E R
R. BASANT, J.
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B.A.No. 4510 of 2007
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Dated this the 31st day of July, 2007
O R D E R
Application for anticipatory bail. The petitioners are spouses.
They face allegations under Section 55(i) of the Kerala Abkari Act.
The crux of the allegations is that when the Excise Party, on receipt
of prior discreet information that the accused were carrying on the
business of sale of liquor in their residential premises without legal
authority, went to the scene of the crime. The first accused, who was
present at the scene pointed out to them six litres of I.M.F.L., which
was kept concealed in the premises. Seizure was effected. The first
accused could not be arrested as the Excise Party did not consist of
any woman police official. Crime has been registered. The
petitioners are accused 1 and 2. Investigation is in progress. The
petitioners apprehend imminent arrest.
2. The learned counsel for the petitioners submits that the
petitioners are absolutely innocent. The total quantity of I.M.F.L.
recovered is only 6 litres. Each of the accused is entitled to possess
3 litres. There is no contention that the liquor seized is spurious or
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that tax, rent, cess etc. payable in respect of the liquor has not been paid.
In these circumstances the allegations raised against the petitioners are
unfounded. They may be granted anticipatory bail, it is prayed.
3. The learned Prosecutor opposes the application. The totality of
circumstances eloquently suggest that 6 litres of I.M.F.L. kept concealed
in the premises was intended for sale and not for personal consumption of
the petitioners. It is impossible at this stage to come to the conclusion that
possession of the liquor was bonafide for the personal consumption and not
for commission of the offence under Section 55(i) of the Abkari Act,
submits the Prosecutor.
4. I have considered all the relevant inputs. On an anxious
consideration of all the relevant inputs, I find merit in the opposition raised
by the learned Prosecutor. It is impossible at this stage and with the
available inputs to come to a safe conclusion that the quantity of liquor
concealed in the premises of the petitioners and recovered – from an
adjacent shed – was possessed bonafide and not for sale by the petitioners.
At any rate, I am satisfied that there are no circumstances which can
persuade this Court to invoke the extra ordinary equitable discretion under
Section 438 Cr.P.C. This I am satisfied is a fit case where the petitioners
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must resort to the ordinary and normal procedure of appearing before the
Investigator or the learned Magistrate having jurisdiction and then seek
regular bail in the ordinary course.
5. This application is accordingly dismissed. Needless to say, if
the petitioners appear before the Investigating Officer or the learned
Magistrate and apply for bail after giving sufficient prior notice to the
Prosecutor in charge of the case, the learned Magistrate must proceed to
pass orders on merits, in accordance with law and expeditiously.
(R. BASANT)
Judge
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