IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R. BASANT MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Bail Appl..No. 1405 of 2008(C) ---------------------------------- CRIME NO. 26 of 2008 OF WALAYAR POLICE STATION ............................................ PETITIONER/ACCUSED --------------------------- VINCENT T.J., AGED 49 YEARS, S/O. T.A.JOSEPH, THOZHUTHINPARAMBIL, KATTINGAL CHIRA, IRINJALAKUDA, TRICHUR. BY ADV. SRI.K.ANAND RESPONDENTS: STATE & COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, WALAYAR POLICE STATION. BY ADV. SRI. P.G. THAMPI, DGP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1405 OF 2008 C ```````````````````````````````````````````````````` Dated this the 24th day of March, 2008 O R D E R Application for anticipatory bail. Petitioner is the 2nd accused. He faces allegations in a crime registered for offences punishable, inter alia, under sections 407, 420 and 120B read with 34 IPC. At present, as many as 16 persons are arrayed as accused. 2. The facts of this crime are indeed strange and interesting. The Malabar Cements Limited(MCL) at Walayar is located on the highway between Tamil Nadu and Kerala. Strangely, it is located beyond the Kerala Sales Tax check post at Walayar where goods coming into Kerala in vehicles by road are checked. There is a peculiar arrangement for vehicles loaded with cement from the Malabar Cements Limited at Walayar which are to come into Kerala. It is submitted that in 2006 this arrangement was struck. The vehicles which are loaded with cement at Malabar Cements BA.1405/08 : 2 : Limited which are to come into Kerala are given a metal token from the Malabar Cements Limited which will help such vehicles loaded with cement to pass through the check post through the green channel without any further checking. The vehicles are not subjected to any detailed scrutiny and they are not obliged to wait in the queue. The criminals appear to have pitched upon this facility to ensure that spirit is moved into Kerala from the neighbouring State of Tamil Nadu. The arrangement is that when the vehicle loaded with cement from Malabar Cements Limited comes out of the gate of Malabar Cements Limited, another vehicle with the same (fake) number identical in all particulars like the one which goes out of the Malabar Cements Limited comes from Tamil Nadu side. The token and the documents of the vehicle carrying cement from Malabar Cements Limited are handed over to such vehicle. Such vehicle takes the green channel. Such vehicle is loaded with larger quantities of spirit. Without any effective checking the spirit loaded vehicle conveniently BA.1405/08 : 3 : finds passage into Kerala. This arrangement has obviously been going for a long period of time. One must be too naive to assume that this arrangement was going on only recently and the detection made in this case on 24.1.08 is one of the first consignments that came into Kerala. 3. Be that as it may, it is now revealed that many such loads of illicit spirit have come into Kerala earlier making use of the peculiar facility conceded to Malabar Cements Limited. While the lorry loaded with spirit comes into Kerala, the lorry loaded with cement from Malabar Cements Limited proceeds towards Tamil Nadu. It is the case of the police that several persons are involved in this conspiracy to smuggle spirit into Kerala. Investigation into this conspiracy to facilitate illegal smuggling of spirit into Kerala is going on. 4. The present story started when one inconvenient excise official appears to have intervened in the whole scheme. He detected the offence and reported the fact promptly. The officials of the Malabar Cements Limited also BA.1405/08 : 4 : lodged a complaint before the police. The excise crime and the police crime were being investigated separately. Now the investigation is taken over by the IGP Crimes who heads the ISISMIT. Investigation is going on. 5. The petitioner is the 2nd accused in the crime registered by the police. The crux of the allegations against the petitioner is that he was also one of the conspirators. The data collected now shows that the cement loaded from the Malabar Cements Limited instead of coming into Kerala proceeds towards Tamil Nadu and it is the petitioner who is taking over the responsibility of disposing of such cement in Tamil Nadu. It is alleged that he distributes/disposes of such cement much lesser prices than the prices at which the same is sold by the Malabar Cements Limited. The police, therefore, allege that the petitioner is a conspirator who has full knowledge of the entire conspiracy to exploit the green channel facility and smuggle spirit into Kerala misusing the tokens/documents issued by the Malabar Cements Limited. BA.1405/08 : 5 : Investigation is in progress. The petitioner has not been arrested so far. He apprehends imminent arrest. 6. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He has absolutely nothing to do with the illicit import/smuggling of spirit into Kerala. He has nothing to do with the disposal of the cement which is taken from Malabar Cements Limited towards Tamil Nadu. He has nothing to do with Nirmal Agencies which is said to have undertaken this responsibility of clandestine disposal of such cement. In any view of the matter, the petitioner does not deserve to endure the trauma of arrest and detention. Anticipatory bail may be granted to him, it is prayed. 7. The learned DGP vehemently opposes the application. The learned DGP submits that it would be puerile at this stage to assume that the petitioner has no contumacious responsibility in the conspiracy or in the clandestine disposal of cement which moves out from the BA.1405/08 : 6 : Malabar Cements Limited. My attention has been drawn to the case diary which, according to me, indicates clearly the complicity of the petitioner and the clandestine disposal by him of cement which goes into Tamil Nadu in place of the spirit loaded vehicles which move into Kerala exploiting the facility available. 8. At this early stage of investigation, I shall scrupulously avoid any detailed discussions on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that I am satisfied that all the available indications clearly suggest the complicity of the petitioner and at any rate, there are no circumstances justifying or warranting the invocation of the extraordinary equitable discretion under section 438 Cr.P.C. 9. A perusal of the case diary in both the crimes, ie. excise and police crimes, reveals to me that the investigators have so far only touched the tip of the ice berg. The matter deserves more detailed and exhaustive investigation. I BA.1405/08 : 7 : expect that the investigators in charge will do a proper and efficient job of the investigation entrusted to them and at any rate, I am not persuaded to agree that it is necessary to arm the petitioner with an order of anticipatory bail at this early stage. The petitioner must co-operate with the investigation. He must make himself available for interrogation by the investigating officer. There are no features whatsoever in this case which can persuade me to invoke the extraordinary equitable discretion under section 438 Cr.P.C. 10. This petition is dismissed. Needless to say, if the petitioner surrenders before the investigating officer or 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 appropriate orders on merits, in accordance with law and expeditiously. (R.BASANT, JUDGE) aks