IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1396 of 2008()
1. SULAN SUKUMARAN, AGED 45 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.AJITH MURALI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :07/03/2008
O R D E R
R.BASANT, J.
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B.A.No.1396 of 2008
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Dated this the 7th day of March 2008
O R D E R
Application for anticipatory bail. The petitioner is the
second accused. He faces allegations in a crime registered
under the Kerala Abkari Act. The crux of the allegations against
the petitioner is that contraband liquor – 10 litres of arrack was
allegedly seized from the premises occupied by the first accused,
who is the wife of the petitioner herein.
2. The petitioner has a case that he is employed and
residing permanently in Mumbai and at the relevant time – the
detection was made on 12/11/2007 – he, consequent to
estrangement with his wife, was residing at Mumbai and worked
there. The petitioner has no responsibility whatsoever for
whatever activities his estranged wife is carrying on in her
present residence which is not frequented by the petitioner at
all. In these circumstances, it is prayed that anticipatory bail
may be granted to the petitioner.
3. The learned Public Prosecutor submits that the
investigation is already complete. Final report has already been
filed arraying the petitioner as well as his wife as accused 2 and
1 respectively. C.P.No.232/07 has been registered before the
B.A.No.1396/08 2
learned Magistrate. The petitioner may be directed to surrender
before the learned Magistrate and seek regular bail, submits the
learned Public Prosecutor.
2. The learned counsel for the petitioner relying on the
decision in Bharat Chaudhary v. State of Bihar [AIR 2003 SC
4662] contends that notwithstanding the fact that the
apprehending arrest was in execution of the process issued by
the court, the petitioner is entitled in the peculiar facts and
circumstances of this case for grant of anticipatory bail. The
learned counsel for the petitioner submits that the prosecution
does not even have an allegation that the petitioner was present
on the date of the incident or any time in the recent past at the
house of his wife as to justify the allegation that the wife was
keeping possession of the articles jointly with him and with the
conscious culpable mental state of the petitioner.
3. The learned Public Prosecutor was requested to
explain to this court the specific circumstances, if any, which can
indicate that the petitioner had constructive joint possession
over the articles kept in the house and also to submit whether
there is anything to show that on the relevant day or any anterior
recent past the petitioner was present at the place where the
recovery was made.
B.A.No.1396/08 3
4. The learned Public Prosecutor fairly submits that
except the allegation that the house is occupied by the
petitioner’s wife and certain statements have been made by her
implicating the petitioner, there is no other evidence whatsoever
to drive home the guilt of the petitioner.
5. Having rendered my anxious consideration to all the
relevant inputs, I am persuaded to agree that directions under
Section 438 Cr.P.C can be issued in favour of the petitioner.
Appropriate directions for a proper completion of the
investigation can be issued in the interests of a proper
investigation.
6. In the result, this petition is allowed. Following
directions are issued under Section 438 Cr.P.C in favour of the
petitioner.
i) Petitioner shall on or before 17/3/2008 appear before
the learned Magistrate having jurisdiction. The learned
Magistrate shall release the petitioner on bail on condition that:
(a) He executes a bond for Rs.25,000/-(Rupees twenty
five thousand only) with two solvent sureties each for the like
sum to the satisfaction of the learned Magistrate.
(b) He shall make himself available for interrogation
before the investigating officer as and when directed by the
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investigating officer in writing to do so.
(iii) If the petitioner does not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to
arrest the petitioner and deal with him in accordance with law,
as if these directions were not issued at all.
(iv) If he were arrested prior to 17/03/2008, he shall be
released from custody on his executing a bond for Rs.25,000/-
(Rupees twenty five thousand only) without any sureties,
undertaking to appear before the learned Magistrate on
17/03/2008.
(R.BASANT, JUDGE)
jsr
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B.A.No.1396/08 6
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007