IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Bail Appl..No. 7557 of 2009() ------------------------------------ C.P.NO. 24/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE ................. PETITIONERS/ACCUSED 1 AND 2: ------------------------------------------------ 1. SANTHA, AGED 50 YEARS, D/O.KUTTAYI, KALATHIL HOUSE, KONOTT P.O., KUNNAMANGALAM VIA KOZHIKODE TALUK. 2. KUNHILAKSHMI, AGED 55 YEARS, D/O.KUTTAYI, RESIDING DO. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------------------ 1. THE EXCISE RANGE OFFICER, CHELANNUR EXCISE RANGE. 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 7557 of 2009 ------------------------------------ Dated this the 15th day of December, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in C.P. No.24/2009 on the file of the Court of the Judicial Magistrate of the First Class-I, Kozhikode. 2. The offence alleged against the petitioners is under Section 55(g) of the Abkari Act. 3. The prosecution case is that on 24.05.2005, the petitioners were found in possession of 50 litres of wash. 4. After completing the investigation, charge sheet was filed in the case. 5. Non bailable warrant was issued by the Court and the petitioners apprehend arrest in execution of the non bailable warrant. It is stated that the petitioners did not get summons. 6. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KLT 576] it was held that in cases where non bailable warrant is issued by a court, the person against whom the warrant is issued has to approach the court which issued the B.A. No. 7557 of 2009 2 warrant and to apply for recalling the warrant and for the grant of bail. In such circumstances, normally, the accused cannot straight away approach this court with a petition under Section 438 of the Code of Criminal Procedure. It was also observed in Vineeth Somarajan's case that when an application for recalling the warrant and for grant of bail is filed, such application shall be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) KLT 280]. Reserving the right of the petitioners to approach the Court which issued the warrant and apply for recalling the warrant and for the grant of bail, this Bail Application is closed. K.T. SANKARAN, JUDGE ln