IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 Bail Appl..No. 5707 of 2009 CRIME NO.106 OF 2009 OF CHERTHALA EXCISE RANGE, ALAPPUZHA PETITIONER: 1ST ACCUSED: -------------------- JIJI, AGED 34 YEARS, W/O. KUNJUMON, VADAPPURATHCHIRA, WARD NO.XV, THANEERMUKKOM PANCHAYATH, CHALIPPALLY, CHERTHALA TALUK. BY ADV. SRI.C.K.SAJEEV RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5707 OF 2009 ------------------------------------------------------ Dated this the 8th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the first accused in Crime No.106 of 2009 of Cherthala Excise Range. 2. The offence alleged against the petitioner is under Sections 8(1) and (2) and Section 55(g) of the Abkari Act. 3. The prosecution case is that on 26.8.2009, a search was conducted in the house of the accused persons at 10.30 PM. A quantity of 20 litres of arrack, 70 litres of wash and the utensils and implements for distillation of arrack were seized from the house. The petitioner being a lady was not arrested as no woman police constable was available. It is alleged by the prosecution that in the search list the petitioner has put her signature. 4. Learned counsel for the petitioner submitted that the petitioner along with her two children are residing in her house as B.A. NO. 5707 OF 2009 :: 2 :: there is a matrimonial dispute between her and her husband. It is also submitted that there is no mention in the mahazar that any other person was available in the house. The petitioner relied on Annexure B ration card to show that there are seven members in the house. It is also pointed out that the petitioner was not arrested on the spot. The contention of the petitioner is that this is a case foisted against her. 5. Going by the records available in the Case Diary file, it cannot be said that there is no prima facie case against the petitioner. The search list shows that the petitioner has put her signature therein. Learned counsel for the petitioner disputes the signature of the petitioner in the search list. That is a matter to be considered at the time of trial. Official acts shall be presumed to have been properly done, going by Section 114 of the Evidence Act. It cannot be assumed that the case was foisted against the petitioner. 6. Taking into account the facts and circumstances of the case, the nature and gravity of the offence and the allegations levelled against the petitioner, I do not think that the petitioner is B.A. NO. 5707 OF 2009 :: 3 :: entitled to get anticipatory bail. I am of the view that I would not be justified in exercising the discretionary jurisdiction under Section 438 of the Code of Criminal Procedure in the present case. The Bail Application is accordingly dismissed. (K.T.SANKARAN) Judge ahz/