IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 Bail Appl..No. 7284 of 2009() ---------------------------------- CRIME NO. 932/2009 OF KOTTIYAM POLICE STATION, KOLLAM DISTRCT ............ PETITIONER/ACCUSED NO.3 : --------------------------------- RAJESH JOY, AGED 30 YEARS, S/O.JOY, VANIYAMPURAYIL HOUSE, NALLATHANNI ROAD, MUNNAR, IDUKKI DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT : ----------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, KOLLAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S. BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/02/2010 ALONG WITH BA NO. 7286 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. Nos. 7284 & 7286 of 2009 ------------------------------------ Dated this the 2nd day of February, 2010 O R D E R When the Bail Applications came up for hearing on 20.01.2010, the following order was passed: “B.A.No.7284 of 2009 is filed by accused No.3, while B.A.No.7286 of 2009 is filed by accused Nos.5 to 8 in Crime No.932 of 2009 of Kottiyam Police Station, Kollam District, for anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the petitioners are under Section 55(a) and (i) of the Abkari Act and Sections 468 and 471 read with Section 34 of the Indian Penal Code. 3. The prosecution case is that on 30.10.2009 at 3 AM, a lorry was intercepted and accused Nos.1 and 2 were arrested on the apprehension that spirit was transported in the lorry. It is stated that accused No.4 was subsequently arrested. He disclosed that the spirit was transported in the lorry and that the spirit belonged to the third accused and it was transported and delivered to accused Nos.4 to 8. It is also stated that the third accused was also involved in the transportation of spirit. The further case of the prosecution is that the B.A. No. 7284 & 7286 of 2009 2 Registration Certificate and other records were manipulated documents. 4. The learned counsel for the petitioners submitted that the offence under Section 55 would not be attracted, since the spirit was not seized by the police from the lorry. According to him, unless Section 31, 32 or 34 is attracted and a seizure is made, no offence under Section 55 would be maintainable. For disposing of these Bail Applications, it is not necessary to decide that contention, since it would be premature to decide that point at this stage. Learned counsel also submitted that in the absence of any seizure of the contraband, mere accusation by a co-accused against accused Nos.3 and 5 to 8 should not be the basis for implicating them in the offence. It is submitted that there is no material to connect the petitioners with the offence. 5. In answer, the learned Public Prosecutor submitted that subsequently 25 litres of spirit was seized from a place and, according to the prosecution, the spirit was kept by accused Nos.4 and 8. 6. In the peculiar facts and circumstances of the case, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 AM on 27th and 28th January 2010. The petitioners shall produce a copy of the order before the investigating officer. B.A. No. 7284 & 7286 of 2009 3 Post on 2.2.2010. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.932 of 2009 of Kottiyam Police Station, Kollam District.” 2. It is submitted by the learned counsel for the petitioner and the learned Public Prosecutor that the petitioner has complied with the direction contained in the order dated 20.01.2010. 3. Taking into account the facts and circumstances of the case, the nature of the offence and other circumstances, I am of the view that anticipatory bail can be granted to the petitioner. There will be a direction that in the event of the arrest of the petitioner, the officer in charge of the police station shall release him on bail on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: A) The petitioner shall report before the investigating officer between 9 A.M and 11 A.M. on alternate Mondays, till the final report is filed or until further orders; B) The petitioner shall appear before the investigating officer for interrogation as and when required; B.A. No. 7284 & 7286 of 2009 4 C) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. D) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail. E) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Applications are allowed to the extent indicated above. K.T. SANKARAN, JUDGE ln