IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 63 of 2008()
1. ABDUL RAHIMAN, S/O.ABDULLA,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY SHO BAKAL
... Respondent
For Petitioner :SRI.T.B.SHAJIMON
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :10/01/2008
O R D E R
R. BASANT, J.
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B.A.No. 63 of 2008
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Dated this the 10th day of January, 2008
O R D E R
Application for anticipatory bail. The petitioner is the
second accused. Altogether there are three accused persons. The
crux of the allegations against the accused persons is that accused
1 and 2, along with another, who has not been identified, were
involved in the objectionable and culpable activity relating to
transaction in arrack in a building belonging to the first accused.
The local people became suspicious as they found vehicles into
and coming out of the premises under suspicious circumstances
at night.
2. On the night of 30.9.2007, the local people restrained
an Omni van, in which large quantity of arrack, (15000 packets,
each of 100 ml.) were found concealed. Local people had
initially suspected that the premises is being used for some flesh
trade. On enquiry it is realised that the Omni van parked near
the building belonging to the first accused contained arrack. The
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vehicle and the contents were seized. In the vehicle there was a
photocopy of a driving licence with the photograph of the second
accused. Local people informed the police that this person (A2) along
with the first accused was seen visiting the premises frequently and
under suspicious circumstances. The police proceeded to the building
in question. There was large quantity of arrack, 350 litres, and
machineries for packeting such liquor in the premises. They were
seized. The police were informed that shortly prior to the arrival of the
police accused 1 and 2, along with another, had fled through the rear
road. A woman spoke to the police about the said aspect at the time of
their visit itself. The first accused was arrested on 1.10.2007. He was
later granted regular bail by this Court. The petitioner has not been
arrested yet. He apprehends imminent arrest.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. Merely because of the fact that a
photocopy of the driving licence of the petitioner was found in the
vehicle, the petitioner is being proceeded against, it is urged. It is, in
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these circumstances, prayed that anticipatory bail may be granted to the
petitioner.
4. The learned Prosecutor opposes the application. He submits
that there are clinching indications to show that the petitioner, along
with the first accused, was carrying on illegal activities in the premises
belonging to the first accused. The recoveries made from the premises,
the availability of the driving licence of the petitioner from the vehicle,
the identification of the local people that the petitioner was found
frequenting the premises and the statement of the neighbour that the
petitioner was present in the premises are all relied on by the learned
Prosecutor to drive home his contention that the petitioner cannot be
held to be guilty at this stage. The totality of inputs available indicate
the culpability of the petitioner and there are no circumstances
justifying or warranting the invocation of the extra ordinary inherent
jurisdiction under Section 438 Cr.P.C. in favour of the petitioner. The
learned Prosecutor in particular submits that the third accused has not
been identified yet. An interrogation of the petitioner is necessary to
ascertain the identity of the third accused.
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5. I have considered all the relevant inputs. I find merit in the
opposition by the learned Prosecutor. I am unable to find any features
in this case, which would justify the invocation of the extra ordinary
equitable discretion under section 438 Cr.P.C. in favour of the
petitioner. This I am satisfied is a fit case where the petitioner must
resort to the ordinary and normal procedure of appearing before the
Investigator or the learned Magistrate having jurisdiction and then seek
regular bail in the ordinary course.
5. This application is accordingly dismissed. I may
however hasten to observe that if the petitioner appears before 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 orders on merits, in accordance with
law and expeditiously.
(R. BASANT)
Judge
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