IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 Bail Appl..No. 1070 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.146/2008 Dated 14/01/2008 CRIMENO.26/08 OF KARUNAGAPPALLY EXCISE RANGE. .................... PETITIONER --------------------------- SUSEELA,W/O.KARTHIKEYAN, THUNDILTHARAYIL (KUTTIYIL PADINJATTATHIL) MUZHANGODI, KALLELIBHAGAM VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE INSPECTOR , EXCISE RANGE, KARUNAGAPPALLY THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1070 of 2008 ------------------------------------------------- Dated this the 26th day of February, 2008 ORDER Application for anticipatory bail. The petitioner - a woman, faces allegations under the Kerala Abkari Act. She was allegedly found to be indulging in illicit sale of Indian Made Foreign Liquor when she was intercepted by the Excise officials on 9/2/08. She was apprehended at the scene; but the formal arrest could not be effected as there was no woman official in the Excise party which detected the offence. 1.5 litres of IMFL was found available with the petitioner and she was allegedly found engaging herself in the actual culpable illicit sale of IMFL. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even if the entire allegations were accepted, possession of 1.5 litres of IMFL B.A. No. 1070 of 2008 -: 2 :- which was found in the possession of the petitioner cannot be held to be objectionable. In these circumstances, anticipatory bail may be granted to her, it is prayed. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the available inputs clearly show that the petitioner was indulging in the illegal activity of illicit sale of IMFL. The quantity which was found available in the possession of the petitioner is irrelevant as the allegation is that the petitioner was found engaging herself in the illicit sale of liquor. 4. The Case Diary has been placed before me for my perusal. I have perused the same. I have gone through the statements of witnesses recorded. There are indications to suggest that the petitioner is habitually indulging in such activity of illicit sale of liquor. The petitioner has no criminal antecedents; in the sense that the petitioner has not been arrayed as accused at any earlier point of time. 5. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that no circumstances B.A. No. 1070 of 2008 -: 3 :- exist justifying or warranting the invocation of the discretion under Sec.438 of the Cr.P.C. 6. All the relevant inputs have been considered by me. I am not satisfied that, in any view of the matter, this is a fit case where the discretion under Sec.438 of the Cr.P.C. can or ought to be invoked in favour of the petitioner. This is an eminently fit case where the petitioner must resort to the ordinary and normal course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the normal and usual course. 7. The fact that anticipatory bail had been granted by this Court to another accused in another case as borne out by Annexure-B order is not a valid or a proper reason to invoke such discretion in favour of the petitioner in this case. The facts and circumstances appear to be different when considered in the light of the statements in the Case Diary. 8. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the B.A. No. 1070 of 2008 -: 4 :- Investigating Officer or the learned Magistrate and seeks 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge