IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Bail Appl..No. 997 of 2009() ------------------------------------- C.R. NO.32/2006 OF VADAKARA EXCISE RANGE. PETITIONER/ACCUSED: ------------------------------------- P.U.ARAVINDAKSHAN , S/O.PADMANABHAN NAIR, 12/112, LALOOR, PARAKKULAYI, ANANDASHRAMAM VIA, KANHANGAD. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------------------ 1. THE EXCISE INSPECTOR VADAKARA EXCISE RANGE. 2. THE ASSISTANT EXCISE COMMISSIONER KOZHIKODE. SRI. TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 997 of 2009 ------------------------------------ Dated this the 28th day of July, 2009 O R D E R The petitioner, who is arrayed as accused No.3 in C.R. No.32 of 2006 of Vadakara Excise Range, has filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The offence alleged against the petitioner and others is under Section 55(a) of the Abkari Act. The allegation is that on 17/06/2006, accused Nos.1 and 2 transported 1400 litres of spirit. One of them was arrested at the spot and the second accused was arrested subsequently. 2. The petitioner is arrayed as an accused on the ground that he is the owner of the vehicle, bearing Registration No.KL9/B4419, which is a Bajaj tempo traveller. 3. The petitioner filed a statement dated 3/08/2006 (Annexure A2) before the Excise Inspector, Vadakara Excise Range, stating that on 23/05/2006 he had transferred the vehicle to Muhammed Kunhi, as per Annexure A1 agreement and that ownership and possession were transferred to Muhammed Kunhi. As per the terms of the agreement, the B.A. No. 997/ 2009 Page numbers benefit of the hire purchase agreement would be available in favour of the transferee. In Annexure A2 statement, it is stated that all the papers were handed over to the hire purchase financier for the purpose of necessary endorsements. 4. When the Bail Application came up for orders on 11/06/2009, the submission made on either side were recorded and certain directions were issued. The relevant portion of which reads as follows: “The learned Public Prosecutor submits that, on investigation, it is revealed that Muhammed Kunhi, the alleged transferee of the vehicle, does not have any resource to purchase the vehicle in question and that the transfer is a genuine one. Learned Counsel for the petitioner pointed out that one of the witnesses in Annexure A1 agreement is Haidar Ali, nephew of the transferee Muhammed Kunhi. Learned Counsel also submits that Haider Ali is involved in other abkari offences. It is also submitted that the investigating officer has not ascertained from the financier or from B.A. No. 997/ 2009 Page numbers the Motor Vehicles Department as to the transfer of ownership of the vehicle. It is also submitted that there is no evidence to connect the petitioner with the offence. Learned Public Prosecutor is also not in a position to say whether Haider Ali is involved in any other abkari offence. Learned Public Prosecutor sought further time to get instructions. A statement shall be filed by the investigating officer furnishing all the relevant details in respect of the case. The report also should indicate whether Haider Ali, one of the witnesses in Annexure A1 agreement, is involved in any other abkari offence or any other offence. Learned Public Prosecutor undertook that till 10/07/2009 the petitioner will not be arrested in connection with C.R. No.32/2006 of Vadakara Excise Range. This undertaking is recorded.” 5. Today the learned Public Prosecutor submitted that charge was laid in the case on 25/04/2009, even before the order dated 11/06/2009 was passed. It is submitted that now the B.A. No. 997/ 2009 Page numbers matter is pending as C.P. No.32/2009 on the file of the court of Judicial Magistrate of the First Class, Vadakara. 6. Since the charge is laid, I do not think it necessary to consider the Bail Application on merits. At the same time, the interests of the petitioner can be protected by issuing a direction to the learned Magistrate to consider the application for bail to be submitted by the petitioner, on the same day on which it is filed. The petitioner shall surrender before the learned Magistrate on 4/08/2009 or on 5/08/2009. The application for bail shall be considered by the learned Magistrate in the light of the decision in Sukumari Vs. State of Kerala [2001(1) KLT 22]. Registry will communicate the order to the Judicial Magistrate of the First Class, Vadakara. Issue copy to the learned counsel for the petitioner and the learned Public Prosecutor. K.T. SANKARAN, JUDGE scm