IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Bail Appl..No. 63 of 2008() --------------------------- C.R. NO.396/07 OF BAKAL POLICE STATION PETITIONER/ACCUSED ----------------- ABDUL RAHIMAN, S/O.ABDULLA, R/AT.MANGAD HOUSE, BARA P.O., UDUMA VILLAGE, HOSDURG TALUK,KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: ------------- STATE OF KERALA, REP. BY SHO BAKAL POLICE STATION, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 63 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2008 O R D E R Application for anticipatory bail. The petitioner is the second accused. Altogether there are three accused persons. The crux of the allegations against the accused persons is that accused 1 and 2, along with another, who has not been identified, were involved in the objectionable and culpable activity relating to transaction in arrack in a building belonging to the first accused. The local people became suspicious as they found vehicles into and coming out of the premises under suspicious circumstances at night. 2. On the night of 30.9.2007, the local people restrained an Omni van, in which large quantity of arrack, (15000 packets, each of 100 ml.) were found concealed. Local people had initially suspected that the premises is being used for some flesh trade. On enquiry it is realised that the Omni van parked near the building belonging to the first accused contained arrack. The B.A.No. 63 of 2008 2 vehicle and the contents were seized. In the vehicle there was a photocopy of a driving licence with the photograph of the second accused. Local people informed the police that this person (A2) along with the first accused was seen visiting the premises frequently and under suspicious circumstances. The police proceeded to the building in question. There was large quantity of arrack, 350 litres, and machineries for packeting such liquor in the premises. They were seized. The police were informed that shortly prior to the arrival of the police accused 1 and 2, along with another, had fled through the rear road. A woman spoke to the police about the said aspect at the time of their visit itself. The first accused was arrested on 1.10.2007. He was later granted regular bail by this Court. The petitioner has not been arrested yet. He apprehends imminent arrest. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Merely because of the fact that a photocopy of the driving licence of the petitioner was found in the vehicle, the petitioner is being proceeded against, it is urged. It is, in B.A.No. 63 of 2008 3 these circumstances, prayed that anticipatory bail may be granted to the petitioner. 4. The learned Prosecutor opposes the application. He submits that there are clinching indications to show that the petitioner, along with the first accused, was carrying on illegal activities in the premises belonging to the first accused. The recoveries made from the premises, the availability of the driving licence of the petitioner from the vehicle, the identification of the local people that the petitioner was found frequenting the premises and the statement of the neighbour that the petitioner was present in the premises are all relied on by the learned Prosecutor to drive home his contention that the petitioner cannot be held to be guilty at this stage. The totality of inputs available indicate the culpability of the petitioner and there are no circumstances justifying or warranting the invocation of the extra ordinary inherent jurisdiction under Section 438 Cr.P.C. in favour of the petitioner. The learned Prosecutor in particular submits that the third accused has not been identified yet. An interrogation of the petitioner is necessary to ascertain the identity of the third accused. B.A.No. 63 of 2008 4 5. I have considered all the relevant inputs. I find merit in the opposition by the learned Prosecutor. I am unable to find any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioner. This I am satisfied is a fit case where the petitioner must resort to the ordinary and normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm B.A.No. 63 of 2008 5