IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7672 of 2008()
1. VARKEY @ ROY, S/O. VARKEY, ERATTHU HOUSE
... Petitioner
2. JOSEPH @ SAJU, S/O. VARKEY,
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :06/02/2009
O R D E R
K.HEMA, J.
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B.A.No. 7672 of 2008
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Dated this the 6th February, 2009
O R D E R
This petition is for anticipatory bail.
2. The alleged offence is under Section 55(g) of the
Abkari Act. According to prosecution, petitioners, who are
accused 1 to 3 were found in possession of 1200 litres of wash
and utensils for distillation of arrack and they were about to
distill arrack. The crime was detected on 25.9.2008.
Petitioners ran away and on the way, electoral identity card of
the second accused and his lunki were dropped while chasing.
Those also were seized.
3. Learned counsel for petitioners submitted that
petitioners are innocent of the allegations made. They were
implicated only because there was an incident on 30.6.2008 in
front of the Excise office in Thankamony, on the allegation that
first accused herein along with other UDF workers attacked
the Excise range office and also assaulted an official. A crime
was registered as Crime No.622/2008. Because of this enmity,
the present crime is registered against petitioners and they
BA.7672/08 2
are not actually involved. The allegation that the electoral card
was in the possession of second accused, when he was
allegedly engaged in distillation, is highly improbable and
hence, anticipatory bail may be granted, it is submitted.
4. This petition is opposed. Learned Public Prosecutor
submitted that the details of petitioners are recorded in the
occurrence report and also in the mahazar. Those persons
were identified by the persons in the locality and their
statements are also there in the case diary. It is not correct to
say that petitioners are falsely implicated. It is also submitted
that the crime was detected not by any officials in
Thankamony Excise Range, but it was detected by the Excise
Enforcement and Anti Narcotic Special Squad, Idukki. The
allegations of motive against the officials are denied.
5. On hearing both sides, considering the serious nature
of the allegations made and in the absence of any special
circumstance to grant anticipatory bail, I am not inclined to
invoke the provision under Section 438 Cr.P.C. I am satisfied
that it is not a fit case to grant anticipatory bail to petitioners.
However, petitioners may raise the same contentions before
BA.7672/08 3
the appropriate court at the time of filing of application under
Section 437 Cr.P.C., in which event, bail application will be
disposed of untrammelled by any of the observations made by
this Court in this order. It is made clear that the observations
made in this order are only for the purpose of considering
whether anticipatory bail can be granted or not. Consideration
for anticipatory bail and bail under Section 437 Cr.P.C are
different as well settled. In the above circumstances, the
following order is passed:
(1) Petitioners are directed to surrender
before the investigating officer and co-
operate with the investigation. Whether
they surrender or not, police is at
liberty to arrest them and proceed in
accordance with law.
(2) No further application for anticipatory
bail by petitioners in this crime will be
entertained by this Court.
With this direction, petition is dismissed.
K.HEMA, JUDGE
vgs.