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
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B.A No.4591 AND 4698 OF 2010
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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