IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 Bail Appl..No. 568 of 2008() ---------------------------- C.R.NO.79/07 OF HOSDURG EXCISE RANGE PETITIONER : ACCUSED ----------------- K.A.SUBAIDA, W/O.MOIDU, PALLIKKARA MADOM, PALLIKKARA VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) RESPONDENTS: COMPLAINANT ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.568 of 2008 ------------------------------------- Dated this the 5th day of February, 2008 ORDER Application for anticipatory bail. Petitioner, a woman, faces allegations in a crime registered, wherein it is alleged that offences punishable under the Kerala Abkari Act have been committed by the petitioner. On receipt of discreet prior information, the excise party had conducted a search in the premises of the house of the petitioner. The petitioner was not available in the house at that time. The search revealed that 150 litres of arrack were concealed in the property around the house. The detection was made and the seizure was effected on 13.12.07. The petitioner has 2 earlier crimes, both registered under the Kerala Abkari Act against her. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Some local persons entertained animus against the petitioner. On 12.12.07, they indulged in culpable overt acts against the petitioner. Stones were thrown at the house of the petitioner. Since the petitioner was not present and damage was caused to the house, about that a complaint has been filed before the police. As a retaliation against that, the present false complaint has been instituted against the petitioner B.A.No.568 of 2008 2 by the excise officials under the influence of such local miscreants. The petitioner is absolutely innocent. The earlier crimes are also registered without any valid justification. In any view of the matter, the petitioner may now be granted anticipatory bail. She shall co-operate with the investigator and abide by any terms that are imposed by this Court. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the investigation reveals the complicity of the petitioner. It is idle now to assume that the allegations are false or raised vexatiously. The petitioner has criminal antecedents. She is involved in identical offences. That recovery of 150 packets of arrack concealed around the premises has been effected is very evident from the materials available. Investigation reveals that the petitioner has been indulging in illicit sale of arrack in the locality for a long period of time. In these circumstances, the petitioner may not be granted anticipatory bail, submits the learned Public Prosecutor. 4. I have considered all the relevant inputs. Powers under Section 438 Cr.P.C are to be invoked sparingly and in exceptional cases that too in aid of justice only. Such powers cannot be invoked as a matter of course. Compelling reasons must be shown to exist to justify such invocation. Invocation of B.A.No.568 of 2008 3 such powers would virtually convert a non bailable offence declared by law to be a bailable one. Having considered all the relevant inputs, I am unable to find any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. The fact that an earlier crime about an incident that took place on 12.12.07 has been registered at the instance of the petitioner or the fact that the house of the petitioner admittedly remained closed at the time of recovery are not, according to me, sufficient reasons which can persuade me in the facts and circumstances to invoke the discretion under Section 438 Cr.P.C. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. (R.BASANT, JUDGE) rtr/- B.A.No.568 of 2008 4