IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Bail Appl..No. 5737 of 2008() ----------------------------- CMP.4405/2008 of J.M.F.C.-I,PALAKKAD (CRIME NO.28/2008 OF KUMBALA EXCISE RANGE, KASARGODE DISTRICT) PETITIONERS/ACCUSED: ----------------- 1. AMJATH MUBARAK MUJAVAR, S/O MUBARAK, JAVULA VILLAGE, SANKOLA TALUK, SHALAPUR DISTRICT, MAHARASHTRA STATE. 2. RAZAK ABDUL MULLA, S/O ABBAS ODAMAM DESOM, VALVA TALUK, SATHARA DISTRICT. ISLAMPUR POST, MAHARASHTRA POST 3. AHMED, S/O MUBARAK, NAVULA VILLAGE, SANKOLA TALUK, SHOLAPUR DISTRICT,MAHARASHTRA STATE. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.P.P.RAMACHANDRAN RESPONDENTS: ------------- 1. STATE OF KERALA, 9EXCISE INSPECTOR, KUMBALA EXCISE RANGE), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, KUMBALA EXCISE RANGE, KUMBALA, KASARGODE. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------ Bail Appl.No. 5737 of 2008 ------------------------------------------------ Dated this the 16th day of September, 2008. ORDER Petition for bail. 2. The alleged offences are under Sections 55(a) and 64A of the Abkari Act. Petitioners were the driver and two cleaners in a lorry, which was transporting certain articles. They were arrested on the allegation that they transported 690 litres of spirit in a parcel service lorry. 3. Learned counsel for the petitioner submitted that the petitioners are absolutely innocent of the allegations made. They are only workers in a transporting company, which is running the business for the past 25 years. They are not involved in any crime so far. In the course of the business, consignments are received and those are transported to different places. The cardboard boxes within which the spirit was found concealed were booked by a particular company and neither the petitioners nor the transporting company were in conscious possession of the contraband article. They have not transported the article knowing the article to be a contraband article, it is submitted. 4. In support of his contention, learned counsel for the petitioners also relied upon the order No.KS3-2106/08 dated 4.9.2008 passed by the Assistant Excise Commissioner, [B.A.No.5737/08] 2 Kasaragod, in connection with the confiscation of the articles. He relies upon the following extract from the order: “On perusing the connected records and on enquiry it is seen that M/s.Fast and Safe Transport Ltd. is one of the leading transporting companies in India and the consignments meant for different destinations. Most of hem are textile goods aimed for Onam festival. The consignment consisting spirit was booked by one consignor with the description of the consignment was declared as Tomato Sauce, chilly and other sauce. It is the acceptable practice of duty of the transporter to accept the consignments as was given by the consignor and believe the description and the contents of the consignment declared by the consignor at the time of booking of the consignment. It is also clear that the above transporting company has been in their business for 25 years and were never reported to be involved in any Abkari crimes. There is nothing prime facie to establish that the above said Transport Company who was the transporter said to be in conscious possession of the contraband spirit. Moreover, the seizure mahazar prepared by the Circle Inspector of Excise, Excise Checkpost, Manjewswaram vide read as 9th paper above very clearly specified that the consignments except the contraband carry valid records.” 5. This petition is opposed. Taking into consideration the quantity of spirit involved and the nature of offence committed it is submitted that bail may not be granted to the petitioners. 6. On hearing both sides, and particularly on going through the order of Assistant Commissioner, which is extracted above, I find that bail can be granted to the petitioners. Learned counsel for the petitioners submitted that petitioners are Muislims and they belong to Mumbai. They are observing fasting during [B.A.No.5737/08] 3 Ramzan and, if bail is granted, they may be directed to appear before the investigating officer, after Ramzan is over, it is submitted. In the above circumstances, bail is granted to the petitioner on the following terms and conditions: i) Petitioners shall execute bond for Rs.50,000/- each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. The sureties shall be local sureties. ii) Petitioners shall report before the Investigating Officer on every Monday and Thursday between 10 A.M. and 1 P.M. with effect from 6.10.2008 onwards. iii) Petitioners shall not leave the limits of the police station within which the crime is registered, except with the prior permission of the learned Magistrate from 6.10.2008 onwards. iv) Petitioner shall not influence or intimidate any witness or tamper with evidence while on bail and in case of breach of this condition, bail is liable to be cancelled. Petition is allowed. K. HEMA, JUDGE. Krs.