IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 8120 of 2007()
1. RAJESH, S/O.GOPINATHAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :09/01/2008
O R D E R
R. BASANT, J.
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B.A. No. 8120 OF 2007
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Dated this the 9th day of January, 2008
ORDER
Application for regular bail. The petitioner is the 7th
accused. Altogether, there are 8 accused persons. The crux
of the allegations against the petitioner is that he, along with
the co-accused, was involved in the illicit activity of
transporting 2385 litres of spirit in a lorry which had secret
chambers in it for the purpose of transporting such illicit
liquor.
2. Accused 1 and 2 – allegedly the driver and cleaner of
the said lorry, were intercepted on 1/12/07 under suspicious
circumstances when it was found that the said lorry was seen
parked at a certain place in Kottarakkara. Accused 1 and 2
were arrested and interrogated. An F.I.R. was registered
showing the 4 persons as accused. Accused 1 and 2 are the
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driver and the cleaner. Accused No.3 is the one who engaged
accused 1 and 2. Accused No.4 is the person who was giving
instructions from time to time to the driver over telephone about
the movements of the vehicle.
3. In the course of investigation, the culpable involvement
of accused Nos.5 to 8 in the transportation of the consignment of
contraband article was ascertained. The petitioner was arrested
on 8/12/07. Investigation is in progress. The petitioner
continues in custody from that date.
4. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. Even going by the allegations
of the police, the alleged role of the petitioner is only that he had
given instructions about the movement of the illicit consignment.
He was not actually involved in the transportation. The learned
counsel for the petitioner submits that in the absence of a
specific provision like Secs.34, 149 or 120B IPC. In the Abkari
Act, the petitioner cannot be held to culpably responsible under
Sec.55(a) of the Kerala Abkari Act. The learned counsel for the
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petitioner further submits that the meager material now
available is only in form of statements of the co-accused and, in
these circumstances, it would harsh to deny the petitioner his
liberty on the basis of such statements which would be
eventually inadmissible in evidence.
5. The precise allegation against the petitioner is that he
was responsible for the transportation of the illicit consignment
and had instructed the co-accused regarding the movement and
disposal of the illicit consignment.
6. The learned Public Prosecutor opposes the application.
The learned Public Prosecutor submits that it would be myopic
to assume that the transportation is done only by the person who
drives the vehicle and not by various persons who are
instrumental in the transportation. Any one who causes the
consignment to move either by his physical participation or by
his involvement by way of instruction regarding the movement of
the illicit consignment must be held to fall within the broad
sweep of Sec.55(a) of the Abkari Act. The learned Prosecutor
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further submits that the principles regarding vicarious liability
in the IPC are in the nature of general principles of criminal law
applicable in all prosecutions and even in the absence of a
specific identical stipulations in the Special Statute concerned
general principles of criminal law must apply while ascertaining
culpability. It is not necessary for me in this Bail Application to
go into that larger question in detail. Suffice it to say that I am
in ready agreement with the learned Public Prosecutor that not
only the driver but also those who instruct the driver about the
movement of the vehicle carrying the illicit consignment must be
held to be responsible for the transportation under Sec.55(a) of
the Abkari Act.
7. The learned Public Prosecutor opposes the application
and in the wake of opposition by the learned Public Prosecutor,
bail can be granted to the petitioner only if this Court is in a
position to entertain both the satisfactions contemplated in
Sec.41A of the Kerala Abkari Act. At the moment and with the
available inputs, I am unable to agree that either of those two
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satisfactions can be entertained by this Court. It will be
imprudent at this stage while considering the application for
grant of bail to exclude the materials which have been collected
from the statements of the co-accused recorded under Sec.161 of
the Cr.P.C. I am satisfied, in these circumstances, that the
petitioner is not entitled for grant of regular bail at this stage.
8. This bail application is accordingly dismissed. But I
may hasten to observe that the petitioner shall be at liberty to
move this Court for bail again at a later stage of the
investigation – not, at any rate, prior to 23/1/08. The
Investigator shall, in the meantime, make every endeavour to
complete the investigation.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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