IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Bail Appl..No. 6719 of 2008() ----------------------------- C.R.NO.101/08 OF CHENGANNUR EXCISE RANGE PETITIONER: ACCUSED --------------------------- PONNAMMA, D/O. K. UNNIKRISHNAN, CHANDRABHAVAN, OTHERA, ERAVIPEROOR. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.6719 of 2008 ----------------------------------------- Dated this the 20th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 55(a) and 13 read with 63 of the Abkari Act. According to prosecution, on 24.9.2008 at about 1.10 p.m, the Excise officials intercepted an auto rickshaw and petitioner (first accused) was found sitting in the auto rickshaw. 11.250 litres of foreign liquor was found inside the auto rickshaw, which was driven by second accused. He is arrested from the spot. Petitioner, being a woman, was not arrested, since no woman police constable was available. 3. Learned counsel for petitioner submitted that allegations made against petitioner will not attract offence under Section 55(a) of the Abkari Act. There can only be an offence under Section 63 of the Abkari Act, even if the entire allegations are petitioner is described as Bindu, D/o.Rajamma but, petitioner is actually Ponnamma, D/o.Unnikrishnan. The Excise officials are now coming in search of petitioner and she apprehends arrest. If she is arrested in an offence under Section 55(a) of the Abkari Act, she will suffer BA.6719/08 2 irreparable loss and injury and hence, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that as per the prosecution case, the article was found transporting for the purpose of sale. Therefore, offence under Section 55(i) of the Abkari Act will be attracted. Investigation is only at the initial stage. That apart, petitioner's name was stated by the driver of the auto rickshaw as 'Bindu' and when she was questioned by the police, she disclosed her name as “Rajamma”. But, on investigation it was found that her actual name is “Ponnamma” and the discrepancy in the description occurred only since the accused themselves gave a wrong description. That cannot be made a ground to grant anticipatory bail. 5. On hearing both sides, I am satisfied that the investigation is at the initial stage and the offences actually involved are yet to be investigated into and revealed. It is too premature at this stage to conclude that the offence is committed is under Section 63 and not under Section 55(i) or 55(a) of the Abkari Act. Even if it is found that offence is only under Section 63 of the Abkari Act, anticipatory bail cannot be granted, since it is a bailable offence. If the allegations of the prosecution are accepted, petitioner has not been revealing the correct details to the Excise officials and the BA.6719/08 3 discretionary remedy cannot be exercised in favour of a person who exhibits such conduct. However, if the offence involved is only under Section 63 of the Abkari Act, it being a bailable offence, there need not be any apprehension of detention. The incident occurred as early as on 24.9.2008, and petitioner did not surrender before the Magistrate Court or before the police. Hence, petitioner is directed to surrender before the Magistrate Court or before the investigating officer without any delay and co- operate with the investigation. Whether petitioner surrenders or not, respondent is at liberty to arrest petitioner and proceed in accordance with law. With this direction, petition is dismissed. K.HEMA, JUDGE vgs.