IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Bail Appl..No. 7274 of 2008(B) ------------------------------------- C.R.NO.65/2004 OF KOTTARAKKARA EXCISE RANGE PETITIONER : ---------------- SURESH KUMAR, AGED 33 YEARS, S/O. VASU PILLAI, KOCHU VEEDU, ANNOOR, AMBALATHUMKALA.P.O, NEDUVATHOOR VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------- B.A. No.7274 OF 2008 -------------------------------- Dated this the 30th day of January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 8(2) of Abkari Act. According to prosecution, on 24.04.2004 at about 9.30 p.m., petitioner (first accused) was driving the auto rickshaw and on seeing the police, 2 persons ran away from the auto rickshaw. 105 litres of spirit were recovered from the auto rickshaw. A crime was registered and on investigation, it is revealed that the auto rickshaw was in possession of petitioner as owner, on the date of occurrence and second accused is the person who was in the auto rickshaw at the time of occurrence. 3. Learned counsel for petitioner submitted that petitioner has nothing to do with the auto rickshaw. He is not the RC owner. The RC owner is some other person and no evidence is available to connect petitioner with the crime. Nobody has seen petitioner running away from the auto rickshaw and none has identified petitioner as the person who B.A.No.7274 of 2008 2 was riding the auto rickshaw at the time of occurrence and hence, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that it is not correct to say that there is no evidence against petitioner. The RC owner is one Jayan and when he was questioned, he produced a document which shows that he transferred the vehicle to one Siju. Siju transferred it to Anjal brothers and Anjal brothers sold it to one Unni and Unni to petitioner. All these persons were questioned by the Investigating Officer and from their evidence, it is clear that as on the date of occurrence, petitioner was in possession of the vehicle as owner of the vehicle, even though RC stands in the name of one Jayan even now. Therefore, the said Jayan is not made an accused. But petitioner is implicated as first accused. On hearing both sides, on the allegations made by both sides, I find that this is not a fit case to grant anticipatory bail. The petitioner may move an application for bail under Section 437 Cr.P.C., in which event, the said petition can be disposed of, on considering the various contentions, on merit. Considerations for grant of anticipatory bail and bail under B.A.No.7274 of 2008 3 Section 437 Cr.P.C. are different. Petitioner shall surrender before the Investigating Officer or before the learned Magistrate within seven days from today. Whether he surrender or not, police is at liberty to arrest him and proceed in accordance with law. The petition is dismissed. K.HEMA, JUDGE pac