High Court Kerala High Court

Varkey @ Roy vs State Of Kerala on 6 February, 2009

Kerala High Court
Varkey @ Roy vs State Of Kerala on 6 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 7672 of 2008()


1. VARKEY @ ROY, S/O. VARKEY, ERATTHU HOUSE
                      ...  Petitioner
2. JOSEPH @ SAJU, S/O. VARKEY,

                        Vs



1. STATE OF KERALA, REP. BY THE PUBLIC
                       ...       Respondent

                For Petitioner  :SRI.B.RAMAN PILLAI

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

 Dated :06/02/2009

 O R D E R
                           K.HEMA, J.

               -----------------------------------------
                       B.A.No. 7672 of 2008
               -----------------------------------------

             Dated this the 6th February, 2009

                            O R D E R

This petition is for anticipatory bail.

2. The alleged offence is under Section 55(g) of the

Abkari Act. According to prosecution, petitioners, who are

accused 1 to 3 were found in possession of 1200 litres of wash

and utensils for distillation of arrack and they were about to

distill arrack. The crime was detected on 25.9.2008.

Petitioners ran away and on the way, electoral identity card of

the second accused and his lunki were dropped while chasing.

Those also were seized.

3. Learned counsel for petitioners submitted that

petitioners are innocent of the allegations made. They were

implicated only because there was an incident on 30.6.2008 in

front of the Excise office in Thankamony, on the allegation that

first accused herein along with other UDF workers attacked

the Excise range office and also assaulted an official. A crime

was registered as Crime No.622/2008. Because of this enmity,

the present crime is registered against petitioners and they

BA.7672/08 2

are not actually involved. The allegation that the electoral card

was in the possession of second accused, when he was

allegedly engaged in distillation, is highly improbable and

hence, anticipatory bail may be granted, it is submitted.

4. This petition is opposed. Learned Public Prosecutor

submitted that the details of petitioners are recorded in the

occurrence report and also in the mahazar. Those persons

were identified by the persons in the locality and their

statements are also there in the case diary. It is not correct to

say that petitioners are falsely implicated. It is also submitted

that the crime was detected not by any officials in

Thankamony Excise Range, but it was detected by the Excise

Enforcement and Anti Narcotic Special Squad, Idukki. The

allegations of motive against the officials are denied.

5. On hearing both sides, considering the serious nature

of the allegations made and in the absence of any special

circumstance to grant anticipatory bail, I am not inclined to

invoke the provision under Section 438 Cr.P.C. I am satisfied

that it is not a fit case to grant anticipatory bail to petitioners.

However, petitioners may raise the same contentions before

BA.7672/08 3

the appropriate court at the time of filing of application under

Section 437 Cr.P.C., in which event, bail application will be

disposed of untrammelled by any of the observations made by

this Court in this order. It is made clear that the observations

made in this order are only for the purpose of considering

whether anticipatory bail can be granted or not. Consideration

for anticipatory bail and bail under Section 437 Cr.P.C are

different as well settled. In the above circumstances, the

following order is passed:

(1) Petitioners are directed to surrender

before the investigating officer and co-

operate with the investigation. Whether

they surrender or not, police is at

liberty to arrest them and proceed in

accordance with law.

(2) No further application for anticipatory

bail by petitioners in this crime will be

entertained by this Court.

With this direction, petition is dismissed.

K.HEMA, JUDGE
vgs.