IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 Bail Appl..No. 46 of 2009() --------------------------- CRMP.2762/2008 of DISTRICT COURT, KASARAGOD CRIME NO. 357/2008 OF KUMBALA POLICE STATION PETITIONER (S): 2ND ACCUSED ------------------------------- JOHN MONTHIRO, AGED 40 YEARS, S/O. BENCHAMIN MONTHIRO, MANDALEKAPPU HOUSE, KUDAL MERKALA VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH SMT.V.SETHUKUTTY AMMA RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, KUMBALA POLICE STATION, KASARAGOD DISTRICT THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 46 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 20th day of February, 2009 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 8(2) of the Abkari Act. According to prosecution, two persons were found near the house of petitioner and on seeing the police party, one of them ran away and the other was arrested and from his possession 17 bottles, each containing 180 ml. of Indian Made Foreign Liquor (total 3.6 litres), were seized and he is the 1st accused. The person who escaped is the 2nd accused. 3. Learned counsel for petitioner submitted that petitioner is falsely implicated because of grudge of the police officer against his family. On 24-11-2008 at about 7 p.m. Sub Inspector and police party trespassed into the house of petitioner and enquired about him, when his wife told them that she did not know about the whereabouts. She was then assaulted and molested and a mobile phone was forcibly taken away by the police. She was also threatened. On this incident, she made a complaint to the Honourable Chief Minister and a copy is produced as Annexure-2 dated 25-11-2008. 4. Petitioner's wife also got admitted in the hospital and BA 46/09 -2- wound certificate is produced as Annexure-1, wherein she made specific allegation of assault by police. Even going by the allegations in the records, petitioner has not been in actual physical possession of any liquor. Admittedly, the liquor was seized from the possession of 1st accused. Therefore, petitioner is not liable for the article seized. In case petitioner is arrested in this case, it is likely that he will be tortured and remanded. Hence, this petition. 5. Learned Public Prosecutor submitted that as per the allegations, the articles were seized from the 1st accused's physical possession. Petitioner was also found along with the 1st accused. Petitioner was involved in three crimes under the Abkari Act – two cases in 2001 and one case in 2002. Crime was registered as early as on 7-12-2008 and petitioner is not available for arrest so far. 6. On hearing both sides, considering the fact that petitioner was not in physical possession of the article, even as per the case of the prosecution, I find that anticipatory bail can be granted to petitioner on conditions, especially since allegations are made against the Sub Inspector of Police and police party, as evidenced by Annexures-1 and 2. If anticipatory BA 46/09 -3- bail is refused, I am satisfied that it is likely that petitioner will suffer irreparable injury and loss. Hence, the following order is passed:- (1) Petitioner shall surrender before the Magistrate Court within seven days from today and he shall be released on bail, on his executing a bond for Rs. 25,000/- with two solvent sureties each, for the like amount, to the satisfaction of the learned Magistrate, on the following conditions:- i) Petitioner shall report before the Investigating Officer as and when directed and co-operate with the investigation. ii) Petitioner shall not intimidate or influence any witness or commit any offence while on bail. This petition is allowed. K.HEMA, JUDGE. mn.