High Court Kerala High Court

Santhosh vs State Of Kerala on 17 August, 2010

Kerala High Court
Santhosh vs State Of Kerala on 17 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 4591 of 2010()


1. SANTHOSH, AGED 40 YEARS,
                      ...  Petitioner
2. VIJAYAKUMAR @ OMANAKUTTAN,

                        Vs



1. STATE OF KERALA, (CRIME NO.601/2010 OF
                       ...       Respondent

                For Petitioner  :SRI.ALAN PAPALI

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

 Dated :17/08/2010

 O R D E R
                                 K.HEMA, J
                            -----------------------
                  B.A No.4591 AND 4698 OF 2010
                        --------------------------------
               Dated this the 17th day of August 2010

                                   ORDER

This petition is for anticipatory bail.

2. The alleged offences are under Sections 55(a) and (i) and

57 A and 58 of the Abkari Act. According to prosecution, on

20/07/2010, at about 1:25 p.m, Sub Inspector of police conducted a

search in a toddy shop and the premises and seized 7 litres of spirit

and 35 litres of toddy mixed with spirit from a property which is

situated adjacent to the toddy shop. First accused is the licensee,

and second and third accused are running the toddy shop and the

articles seized were intended for sale in the toddy shop. Therefore,

a crime was registered against the petitioners.

3. Learned counsel for petitioners (A1 to A3) submitted that

no contraband article was seized from the toddy shop. The articles

seized in this case were from the property of one Paul which

situates 49 meters away from the toddy shop. Petitioners are not

liable for such seizure or possession of the said articles. They have

nothing to do with the articles. The prosecution has not produced

any materials to indicate that petitioners have anything to do with

the contraband articles seized in this case.

4. Second and third accused used to finance first accused.

But, mere payment of money for running a toddy shop will not be

B.A No.4591 AND 4698 OF 2010 2

sufficient to fasten any criminal liability on accused numbers 2 and

3, it is submitted. Learned counsel for first accused also pointed

out that first accused was not even present at the scene at the

time when the seizure was effected. He is not liable for the

materials seized from any property other than the toddy shop. It is

also submitted by learned counsel for first accused that the

western side of the toddy shop is an abandoned area and some

other persons used to conduct parallel sale of liquor from the said

property about which first accused had filed a complaint before the

Superintendent of police and the copy of the complaint is Annexure

D. If at all anything is seized from the western side of the shop,

petitioners are not liable, it is submitted.

5. These petitions are strongly opposed. Learned Public

Prosecutor submitted that as per the materials available in the case

diary, the articles seized in this case were intended for sale in the

toddy shop. There are reliable materials to show that the toddy

and spirit were mixed by accused numbers 1 to 3 for the purpose

of sale from the toddy shop. First accused is the licensee, but, the

toddy shop is being run actually by second and third accused, who

are financing the first accused and the details of the Demand Draft

issued by the accused are available in the case diary. Petitioners

are required for the purpose of custodial interrogation to ascertain

the manner in which the offence is committed and whether any

B.A No.4591 AND 4698 OF 2010 3

other person is also involved in this offence.

5. On hearing both sides and on going through the case

diary, I find that it cannot be said that this case is registered

without any basis. The investigation is in progress and petitioner’s

custodial interrogation is required for the purpose of an effective

investigation. Though the spot from where the article is seized is

situate about 49 meters away, as pointed out by Learned Public

Prosecutor, the said property is situated adjacent to the toddy

shop. I am satisfied that if the petitioners are granted anticipatory

bail and an opportunity for custodial interrogation is denied to the

investigating agency, it will adversely affect the investigation.

Petition is dismissed.

K.HEMA
JUDGE

vdv