IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 Bail Appl..No. 325 of 2010() ---------------------------- CRIME NO.6/2010 OF SULTHAN BATHERY EXCISE RANGE PETITIONERS (S): ACCUSED 1 & 2 --------------------------------------------- 1. ANNIE, W/O.JOHNY, AGED 35 YEARS, NADAYATHUMKARA HOUSE, SEETHAMOUNT, PULPALLY, S.BATHERY, WAYNAD. 2. JOHNY, NADAYATHUMKARA HOUSE, SEETHAMOUNT, PULPALLY, S.BATHERY, WAYANAD. BY ADV. SRI.RAFFEEKH.K RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, SULTHAN BATHERY EXCISE RANGE, SULTHAN BATHERY, WAYANAD. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.325 of 2010 --------------------------------------------- Dated this the 11th day of February, 2010 ORDER 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 Crime No.6 of 2010 of Sulthan Bathery Excise Range. 2. The offence alleged against the petitioners is under Section 8(1) & (2) of the Abkari Act. 3. The prosecution case is that on 14.1.2010, a quantity of 10 litres of arrack was found at the residence of the accused. It is alleged that on seeing the Excise party, accused No.2 ran away. Accused No.1, the wife of accused No.2 was not arrested as no woman police constable was available. 4. The learned Public Prosecutor submitted that accused No.1 had put her signature on the label affixed to the thondi articles and also on the sample. 5. The learned counsel for the petitioners submitted that if the petitioners are arrested and detained, they will be put to untold misery and hardship. Annexures 1 and 2 are produced to BA No.325/2010 2 show that they have two children aged 6 years and 14 years. It is also submitted that certain additional rooms are being constructed in the residential house of the petitioners. Those rooms are not completed and there are no doors to the same. It is alleged that the petitioners were requested to sell the land to some other person and since the petitioners refused to sell the property to him, he must have planted the contraband in the building. While dealing with an application for anticipatory bail, the correctness or otherwise of the contentions referred to above cannot be concerned. Prima facie, there are materials to connect the petitioners with the offence. Whether the case was foisted against the petitioners, is a matter to be considered at the time of trial. 6. The learned counsel for the petitioners submitted that the first petitioner, being a lady, is entitled to the protection under the proviso to Section 437(1) of the Code of Criminal Procedure and that she may be granted anticipatory bail. The protection under the proviso to Section 437(1) of Crl.P.C. is to be considered while disposing of the application for regular bail after the arrest of the first petitioner. The petitioners would be BA No.325/2010 3 entitled to raise all the aforesaid contentions at the time when the Bail Application is moved. I do not find any reason to believe that the court dealing with the application for regular bail would not consider those contentions. 7. Taking into account the facts and circumstances of the case, I do not think that this is a fit case where anticipatory bail can be granted to the petitioners. If anticipatory bail is granted to the petitioners, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl