IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1405 of 2008()
1. VINCENT T.J., AGED 49 YEARS, S/O.
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.ANAND
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :24/03/2008
O R D E R
R. BASANT, J.
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B.A. No. 1405 OF 2008 C
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Dated this the 24th day of March, 2008
O R D E R
Application for anticipatory bail. Petitioner is the 2nd
accused. He faces allegations in a crime registered for
offences punishable, inter alia, under sections 407, 420 and
120B read with 34 IPC. At present, as many as 16 persons
are arrayed as accused.
2. The facts of this crime are indeed strange and
interesting. The Malabar Cements Limited(MCL) at Walayar is
located on the highway between Tamil Nadu and Kerala.
Strangely, it is located beyond the Kerala Sales Tax check
post at Walayar where goods coming into Kerala in vehicles
by road are checked. There is a peculiar arrangement for
vehicles loaded with cement from the Malabar Cements
Limited at Walayar which are to come into Kerala. It is
submitted that in 2006 this arrangement was struck. The
vehicles which are loaded with cement at Malabar Cements
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Limited which are to come into Kerala are given a
metal token from the Malabar Cements Limited which will help
such vehicles loaded with cement to pass through the check
post through the green channel without any further checking.
The vehicles are not subjected to any detailed scrutiny and
they are not obliged to wait in the queue. The criminals
appear to have pitched upon this facility to ensure that spirit is
moved into Kerala from the neighbouring State of Tamil Nadu.
The arrangement is that when the vehicle loaded with cement
from Malabar Cements Limited comes out of the gate of
Malabar Cements Limited, another vehicle with the same
(fake) number identical in all particulars like the one which
goes out of the Malabar Cements Limited comes from Tamil
Nadu side. The token and the documents of the vehicle
carrying cement from Malabar Cements Limited are handed
over to such vehicle. Such vehicle takes the green channel.
Such vehicle is loaded with larger quantities of spirit. Without
any effective checking the spirit loaded vehicle conveniently
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finds passage into Kerala. This arrangement has obviously
been going for a long period of time. One must be too naive
to assume that this arrangement was going on only recently
and the detection made in this case on 24.1.08 is one of the
first consignments that came into Kerala.
3. Be that as it may, it is now revealed that many such
loads of illicit spirit have come into Kerala earlier making use
of the peculiar facility conceded to Malabar Cements Limited.
While the lorry loaded with spirit comes into Kerala, the lorry
loaded with cement from Malabar Cements Limited proceeds
towards Tamil Nadu. It is the case of the police that several
persons are involved in this conspiracy to smuggle spirit into
Kerala. Investigation into this conspiracy to facilitate illegal
smuggling of spirit into Kerala is going on.
4. The present story started when one inconvenient
excise official appears to have intervened in the whole
scheme. He detected the offence and reported the fact
promptly. The officials of the Malabar Cements Limited also
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lodged a complaint before the police. The excise crime and
the police crime were being investigated separately. Now the
investigation is taken over by the IGP Crimes who heads the
ISISMIT. Investigation is going on.
5. The petitioner is the 2nd accused in the crime
registered by the police. The crux of the allegations against
the petitioner is that he was also one of the conspirators. The
data collected now shows that the cement loaded from the
Malabar Cements Limited instead of coming into Kerala
proceeds towards Tamil Nadu and it is the petitioner who is
taking over the responsibility of disposing of such cement in
Tamil Nadu. It is alleged that he distributes/disposes of such
cement much lesser prices than the prices at which the same
is sold by the Malabar Cements Limited. The police,
therefore, allege that the petitioner is a conspirator who has
full knowledge of the entire conspiracy to exploit the green
channel facility and smuggle spirit into Kerala misusing the
tokens/documents issued by the Malabar Cements Limited.
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Investigation is in progress. The petitioner has not been
arrested so far. He apprehends imminent arrest.
6. The learned counsel for the petitioner submits that
the petitioner is absolutely innocent. He has absolutely
nothing to do with the illicit import/smuggling of spirit into
Kerala. He has nothing to do with the disposal of the cement
which is taken from Malabar Cements Limited towards Tamil
Nadu. He has nothing to do with Nirmal Agencies which is
said to have undertaken this responsibility of clandestine
disposal of such cement. In any view of the matter, the
petitioner does not deserve to endure the trauma of arrest
and detention. Anticipatory bail may be granted to him, it is
prayed.
7. The learned DGP vehemently opposes the
application. The learned DGP submits that it would be puerile
at this stage to assume that the petitioner has no
contumacious responsibility in the conspiracy or in the
clandestine disposal of cement which moves out from the
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Malabar Cements Limited. My attention has been drawn to
the case diary which, according to me, indicates clearly the
complicity of the petitioner and the clandestine disposal by
him of cement which goes into Tamil Nadu in place of the
spirit loaded vehicles which move into Kerala exploiting the
facility available.
8. At this early stage of investigation, I shall
scrupulously avoid any detailed discussions on merits about
the acceptability of the allegations or the credibility of the data
collected. Suffice it to say that I am satisfied that all the
available indications clearly suggest the complicity of the
petitioner and at any rate, there are no circumstances
justifying or warranting the invocation of the extraordinary
equitable discretion under section 438 Cr.P.C.
9. A perusal of the case diary in both the crimes, ie.
excise and police crimes, reveals to me that the investigators
have so far only touched the tip of the ice berg. The matter
deserves more detailed and exhaustive investigation. I
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expect that the investigators in charge will do a proper and
efficient job of the investigation entrusted to them and at any
rate, I am not persuaded to agree that it is necessary to arm
the petitioner with an order of anticipatory bail at this early
stage. The petitioner must co-operate with the investigation.
He must make himself available for interrogation by the
investigating officer. There are no features whatsoever in this
case which can persuade me to invoke the extraordinary
equitable discretion under section 438 Cr.P.C.
10. This petition is dismissed. Needless to say, if the
petitioner surrenders before the investigating officer or the
learned Magistrate and applies for bail, after giving sufficient
prior notice to the Prosecutor in charge of the case, the
learned Magistrate must proceed to pass appropriate orders
on merits, in accordance with law and expeditiously.
(R.BASANT, JUDGE)
aks