High Court Kerala High Court

Rajesh vs State Of Kerala on 9 January, 2008

Kerala High Court
Rajesh vs State Of Kerala on 9 January, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 8120 of 2007()


1. RAJESH, S/O.GOPINATHAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.B.S.SWATHY KUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :09/01/2008

 O R D E R
                          R. BASANT, J.
            -------------------------------------------------
                     B.A. No. 8120 OF 2007
            -------------------------------------------------
          Dated this the 9th day of January, 2008

                               ORDER

Application for regular bail. The petitioner is the 7th

accused. Altogether, there are 8 accused persons. The crux

of the allegations against the petitioner is that he, along with

the co-accused, was involved in the illicit activity of

transporting 2385 litres of spirit in a lorry which had secret

chambers in it for the purpose of transporting such illicit

liquor.

2. Accused 1 and 2 – allegedly the driver and cleaner of

the said lorry, were intercepted on 1/12/07 under suspicious

circumstances when it was found that the said lorry was seen

parked at a certain place in Kottarakkara. Accused 1 and 2

were arrested and interrogated. An F.I.R. was registered

showing the 4 persons as accused. Accused 1 and 2 are the

B.A. No. 8120 OF 2007 -: 2 :-

driver and the cleaner. Accused No.3 is the one who engaged

accused 1 and 2. Accused No.4 is the person who was giving

instructions from time to time to the driver over telephone about

the movements of the vehicle.

3. In the course of investigation, the culpable involvement

of accused Nos.5 to 8 in the transportation of the consignment of

contraband article was ascertained. The petitioner was arrested

on 8/12/07. Investigation is in progress. The petitioner

continues in custody from that date.

4. The learned counsel for the petitioner submits that the

petitioner is absolutely innocent. Even going by the allegations

of the police, the alleged role of the petitioner is only that he had

given instructions about the movement of the illicit consignment.

He was not actually involved in the transportation. The learned

counsel for the petitioner submits that in the absence of a

specific provision like Secs.34, 149 or 120B IPC. In the Abkari

Act, the petitioner cannot be held to culpably responsible under

Sec.55(a) of the Kerala Abkari Act. The learned counsel for the

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petitioner further submits that the meager material now

available is only in form of statements of the co-accused and, in

these circumstances, it would harsh to deny the petitioner his

liberty on the basis of such statements which would be

eventually inadmissible in evidence.

5. The precise allegation against the petitioner is that he

was responsible for the transportation of the illicit consignment

and had instructed the co-accused regarding the movement and

disposal of the illicit consignment.

6. The learned Public Prosecutor opposes the application.

The learned Public Prosecutor submits that it would be myopic

to assume that the transportation is done only by the person who

drives the vehicle and not by various persons who are

instrumental in the transportation. Any one who causes the

consignment to move either by his physical participation or by

his involvement by way of instruction regarding the movement of

the illicit consignment must be held to fall within the broad

sweep of Sec.55(a) of the Abkari Act. The learned Prosecutor

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further submits that the principles regarding vicarious liability

in the IPC are in the nature of general principles of criminal law

applicable in all prosecutions and even in the absence of a

specific identical stipulations in the Special Statute concerned

general principles of criminal law must apply while ascertaining

culpability. It is not necessary for me in this Bail Application to

go into that larger question in detail. Suffice it to say that I am

in ready agreement with the learned Public Prosecutor that not

only the driver but also those who instruct the driver about the

movement of the vehicle carrying the illicit consignment must be

held to be responsible for the transportation under Sec.55(a) of

the Abkari Act.

7. The learned Public Prosecutor opposes the application

and in the wake of opposition by the learned Public Prosecutor,

bail can be granted to the petitioner only if this Court is in a

position to entertain both the satisfactions contemplated in

Sec.41A of the Kerala Abkari Act. At the moment and with the

available inputs, I am unable to agree that either of those two

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satisfactions can be entertained by this Court. It will be

imprudent at this stage while considering the application for

grant of bail to exclude the materials which have been collected

from the statements of the co-accused recorded under Sec.161 of

the Cr.P.C. I am satisfied, in these circumstances, that the

petitioner is not entitled for grant of regular bail at this stage.

8. This bail application is accordingly dismissed. But I

may hasten to observe that the petitioner shall be at liberty to

move this Court for bail again at a later stage of the

investigation – not, at any rate, prior to 23/1/08. The

Investigator shall, in the meantime, make every endeavour to

complete the investigation.

Sd/-

(R. BASANT, JUDGE)
Nan/

//true copy//

P.S. to Judge

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