IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7636 of 2009()
1. VINOD, AGED 29 YEARS, S/O. VIJAYAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.NIREESH MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/12/2009
O R D E R
K.T.SANKARAN, J.
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B.A.No.7636 of 2009
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Dated this the 21st day of December, 2009
ORDER
This is an application for bail under Section 439 of the
Code of Criminal Procedure. The petitioner is accused No.2 in
C.R.No.62 of 2006 of Pathanapuram Excise Range, Kollam
District.
2. The offence alleged against the petitioner is under
Section 55(a) & (i) of the Abkari Act.
3. The prosecution case is that on 21.7.2006, the
petitioner and the other accused transported a quantity of 3640
litres of spirit. The first accused was arrested on the spot. The
petitioner could not be arrested as he ran away. The petitioner
was arrested in another case and his formal arrest was recorded
on 6.10.2009.
4. The learned counsel for the petitioner submitted that
the investigating officer has not filed the final report before the
expiry of sixty days and therefore, the petitioner is entitled to
default bail under Section 167(2) of the Code of Criminal
Procedure.
BA No.7636/2009 2
5. It is pointed out by the learned counsel for the
petitioner that the petitioner moved an application under Section
167(2) of the Code of Criminal Procedure before the lower court.
But, it was dismissed and bail was refused on the ground that the
case comes under Section 167(2)(a)(i) and not under Section 167
(2)(a)(ii). It is submitted that the decision of the trial court is
quite contrary to the decision in Sreerajan vs. State of Kerala
(2001(1) KLT 827). It was held in Sreerajan vs. State of Kerala
(2001(1) KLT 827) thus:
“To attract the proviso (a)(i) of Section 167
(2), the offence must be punishable with death,
imprisonment for life or imprisonment for a term
not less than 10 years. But in the case of an
offence punishable with imprisonment which may
extend up to 10 years, the court is competent to
pass a sentence of imprisonment less than 10
years. Therefore, an offence punishable with
imprisonment which may extend up to 10 years is
covered by the proviso (a)(ii) to Section 167(2) and
not covered by proviso (a)(i). In all cases where the
offences are punishable with imprisonment which
may extend up to 10 years, the legislature does not
expect the imposition of sentence of imprisonment
not less than 10 years. In a case covered by proviso
to (a) (i) of Section 167(2) the minimum
punishment is imprisonment for 10 years where as
in the case of an offence punishable with
imprisonment which may extend up to 10 years the
maximum punishment is imprisonment for 10
years. Therefore, the two cases cannot be included
in the same category. In this case, the petitioner is
alleged to have committed an offence punishable
with imprisonment for a term which may extend toBA No.7636/2009 3
10 years and with fine which shall not be less than
Rs.1 lakh. As already noticed, the petitioner is in
custody since 23.12.2000. Therefore, he has to be
released on bail if he is prepared to and does
furnish bail in view of the proviso (a)(ii) to Section
167 of the Crl.P.C.”
The view taken by the court below is against the dictum
laid down in Sreerajan vs. State of Kerala (2001(1) KLT 827).
6. Taking into account the facts and circumstances of the
case, the duration of the judicial custody undergone by the
petitioner, the nature of the offence and the fact that no charge
is laid within 60 days, I am of the view that bail can be granted
to the petitioner.
The petitioner shall be released on bail on his executing
bond for Rs.25,000/- with two solvent sureties for the like
amount to the satisfaction of the Judicial Magistrate of the First
Class-I, Punalur, subject to the following conditions:
a) The petitioner shall report before the investigating officer
between 9 A.M. and 11 A.M. on every Monday and
Thursday for a period of two months and thereafter, on
every Monday, till the final report is filed or until further
orders;
b) The petitioner shall appear before the investigating officer
for interrogation as and when required;
c) The petitioner shall not try to influence the prosecution
witnesses or tamper with the evidence;
BA No.7636/2009 4
d) The petitioner shall not commit any offence or indulge in
any prejudicial activity while on bail;
e) In case of breach of any of the conditions mentioned above,
the bail shall be liable to be cancelled.
The Bail Application is allowed as above.
K.T.SANKARAN,
JUDGE
csl