IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7284 of 2009()
1. RAJESH JOY, AGED 30 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.NIREESH MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :02/02/2010
O R D E R
K.T. SANKARAN, J.
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B.A. Nos. 7284 & 7286 of 2009
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Dated this the 2nd day of February, 2010
O R D E R
When the Bail Applications came up for hearing on
20.01.2010, the following order was passed:
“B.A.No.7284 of 2009 is filed by accused No.3,
while B.A.No.7286 of 2009 is filed by accused Nos.5 to 8
in Crime No.932 of 2009 of Kottiyam Police Station,
Kollam District, for anticipatory bail under Section 438 of
the Code of Criminal Procedure.
2. The offences alleged against the petitioners are
under Section 55(a) and (i) of the Abkari Act and
Sections 468 and 471 read with Section 34 of the Indian
Penal Code.
3. The prosecution case is that on 30.10.2009 at 3
AM, a lorry was intercepted and accused Nos.1 and 2
were arrested on the apprehension that spirit was
transported in the lorry. It is stated that accused No.4
was subsequently arrested. He disclosed that the spirit
was transported in the lorry and that the spirit belonged
to the third accused and it was transported and delivered
to accused Nos.4 to 8. It is also stated that the third
accused was also involved in the transportation of spirit.
The further case of the prosecution is that the
B.A. No. 7284 & 7286 of 2009 2
Registration Certificate and other records were
manipulated documents.
4. The learned counsel for the petitioners submitted
that the offence under Section 55 would not be attracted,
since the spirit was not seized by the police from the lorry.
According to him, unless Section 31, 32 or 34 is attracted
and a seizure is made, no offence under Section 55 would
be maintainable. For disposing of these Bail
Applications, it is not necessary to decide that contention,
since it would be premature to decide that point at this
stage. Learned counsel also submitted that in the
absence of any seizure of the contraband, mere
accusation by a co-accused against accused Nos.3 and 5
to 8 should not be the basis for implicating them in the
offence. It is submitted that there is no material to connect
the petitioners with the offence.
5. In answer, the learned Public Prosecutor
submitted that subsequently 25 litres of spirit was seized
from a place and, according to the prosecution, the spirit
was kept by accused Nos.4 and 8.
6. In the peculiar facts and circumstances of the
case, I am of the view that before disposing of the Bail
Application, an opportunity should be given to the
petitioners to appear before the investigating officer.
Accordingly, there will be a direction to the petitioners to
appear before the investigating officer at 9 AM on 27th and
28th January 2010. The petitioners shall produce a copy of
the order before the investigating officer.
B.A. No. 7284 & 7286 of 2009 3
Post on 2.2.2010.
It is submitted by the learned Public Prosecutor that
the petitioners will not be arrested until further orders in
connection with Crime No.932 of 2009 of Kottiyam Police
Station, Kollam District.”
2. It is submitted by the learned counsel for the petitioner
and the learned Public Prosecutor that the petitioner has complied
with the direction contained in the order dated 20.01.2010.
3. Taking into account the facts and circumstances of the
case, the nature of the offence and other circumstances, I am of
the view that anticipatory bail can be granted to the petitioner.
There will be a direction that in the event of the arrest of the
petitioner, the officer in charge of the police station shall release
him on bail on his executing bond for Rs.25,000/- with two
solvent sureties for the like amount to the satisfaction of the
officer concerned, subject to the following conditions:
A) The petitioner shall report before the
investigating officer between 9 A.M and 11 A.M.
on alternate Mondays, till the final report is filed
or until further orders;
B) The petitioner shall appear before the
investigating officer for interrogation as and when
required;
B.A. No. 7284 & 7286 of 2009 4
C) The petitioner shall not try to influence the
prosecution witnesses or tamper with the
evidence.
D) The petitioner shall not commit any offence or
indulge in any prejudicial activity while on bail.E) In case of breach of any of the conditions
mentioned above, the bail shall be liable to be
cancelled.
The Bail Applications are allowed to the extent indicated
above.
K.T. SANKARAN, JUDGE
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