IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5707 of 2009()
1. JIJI, AGED 34 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
For Petitioner :SRI.C.K.SAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/10/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 5707 OF 2009
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Dated this the 8th day of October, 2009
O R D E R
This is an application for anticipatory bail under Section 438 of
the Code of Criminal Procedure. The petitioner is the first accused
in Crime No.106 of 2009 of Cherthala Excise Range.
2. The offence alleged against the petitioner is under Sections
8(1) and (2) and Section 55(g) of the Abkari Act.
3. The prosecution case is that on 26.8.2009, a search was
conducted in the house of the accused persons at 10.30 PM. A
quantity of 20 litres of arrack, 70 litres of wash and the utensils and
implements for distillation of arrack were seized from the house. The
petitioner being a lady was not arrested as no woman police
constable was available. It is alleged by the prosecution that in the
search list the petitioner has put her signature.
4. Learned counsel for the petitioner submitted that the
petitioner along with her two children are residing in her house as
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there is a matrimonial dispute between her and her husband. It is
also submitted that there is no mention in the mahazar that any other
person was available in the house. The petitioner relied on
Annexure B ration card to show that there are seven members in the
house. It is also pointed out that the petitioner was not arrested on
the spot. The contention of the petitioner is that this is a case foisted
against her.
5. Going by the records available in the Case Diary file, it
cannot be said that there is no prima facie case against the
petitioner. The search list shows that the petitioner has put her
signature therein. Learned counsel for the petitioner disputes the
signature of the petitioner in the search list. That is a matter to be
considered at the time of trial. Official acts shall be presumed to
have been properly done, going by Section 114 of the Evidence Act.
It cannot be assumed that the case was foisted against the
petitioner.
6. Taking into account the facts and circumstances of the
case, the nature and gravity of the offence and the allegations
levelled against the petitioner, I do not think that the petitioner is
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entitled to get anticipatory bail. I am of the view that I would not be
justified in exercising the discretionary jurisdiction under Section 438
of the Code of Criminal Procedure in the present case.
The Bail Application is accordingly dismissed.
(K.T.SANKARAN)
Judge
ahz/