IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3664 of 2010()
1. P.V.RAJEEVAN, AGED 39,S/O. NARAYANAN,
... Petitioner
Vs
1. STATE OF KREALA, TO BE REP.BY PUBLIC
... Respondent
2. CIRCLE INSPECTOR OF EXCISE, ERNAKULAM.
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :21/06/2010
O R D E R
K.HEMA, J.
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Bail Application No.3664 of 2010
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Dated 21st June, 2010.
O R D E R
This petition is for anticipatory bail.
2. The alleged offences are under Sections 8(2) and 55
(a) of the Kerala Abkari Act. According to prosecution, on the Sea
Port – Airport Road, a lorry was found parked on 10.11.2006 at
about 8 p.m. 10,590/- litres of spirit were seized from the vehicle.
The first accused is stated to be the driver of the vehicle and the
9th accused is the cleaner, who ran away. On investigation, it was
revealed that the vehicle was in possession of 5th accused and it
was arranged by 2nd, 3rd and 4th accused for transportation of
spirit. The 6th, 7th, 8th and 10th accused were allegedly engaged in
transportation of spirit.
3. Learned counsel for petitioner submitted that
petitioner received summons from the court and he appeared
through counsel and filed an application for excusing his absence.
But, the court rejected the same, stating that petitioner was not
on bail. Petitioner is a disabled person and both his eyes are
impaired and a certificate, Annexure II is produced to show that
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he is having 100% permanent visual disability.
4. It is pointed out that in the first page of the charge
sheet itself, it is alleged that the R.C. owner is CW-11 and the
lorry was purchased in the name of 4th accused(petitioner) for the
use by second accused, who is his brother. The allegations made
in the charge sheet will show that all further transactions were
done by second accused and other persons. Petitioner is
absolutely innocent of the allegations made and he is
apprehending arrest, in view of warrant issued by the court.
5. It is also pointed out that 10th accused was
remanded to custody on his appearance on summons and bail
was granted by this court, taking into consideration that the
remand was illegal since the accused appeared on summons.
Petitioner apprehends that he will face the same fate as that of
10th accused, and in case he is remanded, he will suffer
irreparable injury, it is submitted.
6. This petition is strongly opposed. Learned Public
Prosecutor submitted that petitioner has purchased the lorry in his
own name. Even if he is disabled, he cannot dispute the fact that
the lorry was purchased in his name. He had executed
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documents for the purchase of the lorry and even if it is
purchased for the use of second accused, petitioner cannot put
forward the present defence and get exonerated from the criminal
liability, it is submitted. Petitioner’s role in the offence cannot be
denied as it is specifically stated in the charge sheet that the lorry
is purchased in the name of 4th accused, it is submitted.
7. Learned Public Prosecutor also submitted that
petitioner failed to appear on receipt of summons and even if the
order of the court below in issuance of summons is wrong,
petitioner’s remedy is not to apply for anticipatory bail. The mere
fact that court below has issued warrant is not a ground to get
anticipatory bail, it is submitted. It is further pointed out that 10th
accused was granted only regular bail and in the peculiar facts
and circumstances of the case, in view of the fact that the court
remanded the accused in violation of the dictum laid down in
Sreekumar v. State of Kerala (2008(3) KLT 748), he was
granted bail. The 10th accused was brought into the array of
accused only after three years of the incident, at a highly belated
stage and he was implicated only as per the charge sheet for the
first time.
BA NO.3664/10 4
8. On hearing both sides and on appreciation of the
facts and circumstances of the case, I find that petitioner is
apprehending arrest only because a warrant is issued by the court
below. Petitioner has not challenged the said order. A reading of
the allegations made against petitioner would show that the lorry
was purchased in his name and the contraband articles were
seized from the said lorry, though the possession was transferred
from person to person till the date of occurrence. It is true that
there is a statement in the charge sheet that the lorry was
purchased in the name of 4th accused for use by second accused,
who is his brother.
9. On an overall evaluation of all the aspects, I am of
the view that petitioner may, if so advised, surrender before the
Magistrate Court concerned and seek bail and raise all the
contentions before the same court. It is also to be noted that in
the order dated 11.6.2010 in B.A.3644/10, this Court had
observed the illegality committed by the committal court in
remanding 10th accused, in violation of the dictum laid down in
Sreekumar v. State of Kerala (2008(3) KLT 748).
10. Learned counsel for petitioner submitted that
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petitioner is prepared to surrender before the Magistrate Court
concerned tomorrow itself. Hence, the following order is passed :
Petitioner shall surrender before the Magistrate Court
concerned tomorrow and seek relief under Section 437
of the Criminal Procedure Code, in which event, learned
Magistrate shall take into consideration all the relevant
aspects and dispose of the application in accordance
with law, as expeditiously as possible, on merits,
untrammelled by the observations, made by this Court
if any, on merits in this order.
Petition is disposed of accordingly.
K.HEMA, JUDGE.
tgs