IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4838 of 2007()
1. DILEEP, S/O. DIVAKARAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :10/08/2007
O R D E R
R.BASANT, J.
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B.A.No.4838 of 2007
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Dated this the 10th day of August 2007
O R D E R
Application for anticipatory bail. The petitioner is arrayed
as the second accused. The alleged incident had taken place on
6/4/2007. Being Good Friday, it was supposed to be a dry day. A
police party found licensee of the shop and a person, allegedly an
employee of the licensee, engaging themselves in the sale of
liquor in the premises of the toddy shop. Seeing the police party
both took to their heels. The employee of the licensee is not
named in the F.I.R. Investigation continued. In the course of the
investigation, the petitioner has allegedly been identified to be
the employee of the licensee who was available at the scene and
was found vending Indian made foreign liquor in the premises of
the licensed toddy shop. The petitioner has not been arrested
yet. The petitioner apprehends imminent arrest.
2. The learned counsel for the petitioner submits that
the petitioner is absolutely innocent. He has not been named in
the F.I.R. He was not an employee of the toddy shop. No
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records show that he is an employee of the toddy shop. The
petitioner, in these circumstances, prays that anticipatory bail
may be granted to the petitioner.
3. The learned Public Prosecutor opposes the
application. The learned Public Prosecutor submits that the
available indications clearly shows that the licensee and an
employee of his (the petitioner) were engaged in the activity of
illicit sale of I.M.F.L in a toddy shop on a dry day. At the
moment and with the available inputs there is absolutely no
reason to doubt that the case of the investigating officer that the
petitioner was present along with the licensee and was engaging
himself in the activity of sale of I.M.F.L. At any rate, there are
no circumstances at all justifying the invocation of the discretion
under Section 438 Cr.P.C, submits the learned Public
Prosecutor.
4. Having considered all the relevant inputs, I find merit
in the opposition by the learned Public Prosecutor. Even regular
bail can be granted to the petitioner only if this court is in a
position to entertain the twin satisfactions under Section 41A of
the Kerala Abkari Act. I do not find any features in this case
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which would justify invocation of such extraordinary equitable
discretion under Section 438 Cr.P.C. This is a fit case where the
petitioner must appear before the investigating officer or the
learned Magistrate having jurisdiction and then seek regular bail
in the normal and ordinary course.
5. In the result, 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)
jsr
// True Copy// PA to Judge
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B.A.No.4838/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007