IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 Bail Appl..No. 4167 of 2008() ----------------------------- CRMP.1392/2008 of ADDL.DISTRICT COURT,KOTTAYAM CRIME NO. 7/2008 OF EXCISE RANGE OFFICE, ERATTUPETTA PETITIONER/ACCUSED ----------------------------------- JAYAN, S/O.BABU, MANATHANATHU VEEDU, KAIPPALLY P.O., POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK. BY ADV. SRI.P.N.SASIDHARAN RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERATTUPETTA, NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4167 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2008 O R D E R Application for anticipatory bail. 2. According to the prosecution, while the Excise Inspector was on patrol duty and when they reached in front of Vijaya Hotel, a person was found carrying a plastic bag and he was perplexed on seeing them. He was seen at a distance of 20 feet. The said person abandoned the article and ran away and hence he could not be apprehended. The article was examined and it was found that the abandoned bag contained 4 litres of Indian Made Foreign Liquor in bottles. On enquiry, it was revealed that the person who ran away was the petitioner. The witnesses told the Excise Inspector that they are from petitioner's place and the petitioner was engaged in selling of liquor after buying it from the outlet of Beverages Corporation. Since the petitioner was in possession of 4 litres of Indian Made Foreign Liquor, which is the above the permissible quantity, a case was registered against him under section 55(a) of the Abkari Act . BA 4167/08 -2- 3. Learned counsel for the petitioner submitted that the allegations are absolutely false. The petitioner is an agriculturist and he is residing about 12 k.m. away from the place of occurrence. He had come to the locality for purchasing rubber shades and manure for rubber trees. On the way back, he bought 3 litres of Indian Made Foreign Liquor from the liquor shop of Beverages Corporation at Irattupettah and when he came out of the shop somebody caught hold of his bag. He resisted the same and hence there was an altercation. The stranger told him that he would teach him a lesson . 4. The petitioner did not realize that the said person was an Excise official, but on coming to know his identity, he immediately showed the bill issued to him from the Beverages Corporation. Copy of the bill is produced as Annexure-A1. The Inspector took the articles from him and kept it in the jeep in which the petitioner was travelling along with two other persons from his locality. The driver immediately told the Excise Inspector that it could not be kept in his jeep, since it was not taken from his jeep. The Excise Inspector then took out the article and kept it by the side of the road. For one hour the petitioner and others had to remain there, hoping to get back the article, but it was not given. They came back. Later, it is understood that the petitioner is implicated in an offence under the Abkari Act . BA 4167/08 -3- 5. It is pointed out by the learned counsel for the petitioner that as per the prosecution allegation, the incident happened in front of Vijaya Hotel. It is argued that Vijaya hotel is immediately opposite to the Beverages Corporation and both of these are situated on either side of the road. A deliberate attempt is now made to suppress even the situation of the Beverages Corporation in the locality and the place of occurrence is described as a road in front of Vijaya Hotel. A photograph is produced showing that these two places are either side of the road. But, this fact is deliberately suppressed from the records in this case, it is submitted. Copy of the bill issued form the Beverages Corporation shop is produced and it reveals that it was issued for purchasing three litres of liquor. It is conceded that more than three litres of liquor will not be given to a person at a time from the Beverages Corporation. It is also submitted that after the petitioner left the place, a case is cooked up against him by including one more litre of liquor for which he is not liable. 6. The application is opposed. The learned Public Prosecutor submitted that this court can go only by the materials available in the case diary at this stage of the case. The case diary reveals the involvement of the accused in the crime. It is specifically stated that the petitioner is a habit of purchasing liquor from the Beverages Corporation and he is engaged in selling of liquor in his native place. The petitioner was found in possession BA 4167/08 -4- of more than the permissible quantity of liquor. 7. On hearing both sides, it is clear that the petitioner is proceeded against,only for an offence under section 55(a) of the Abkari Act. The allegation is that he was found in possession of more than the permissible quantity of Indian Made Foreign Liquor. The mere possession of such liquor above the permissible quantity constitutes only an offence under section 63 of the Abkari Act. In the light of the dictum laid down in Sabu V. State of Kerala (2003(2) KLT 173), the said offence is only bailable. However, on the facts of this case, it is likely that subsequently section may be altered an attempt may be made to include a non-bailable offence. In the mahazar there is already an interpolation indicating that the liquor was meant for sale etc. Hence, the apprehension of petitioner that he will be arrested on accusation of a non-bailable offence cannot be brushed aside lightly. It is also submitted that in the event of arrest, he will be harassed also. 8. Hence, the following order is passed:- Petitioner shall be released on bail, in the event of his arrest, on his executing a bond for Rs.25,000/- with solvent sureties each for the like amount to the satisfaction of the arresting officer on condition that he will co- BA 4167/08 -5- operate with the investigation and appear before the Investigating Officer as and when directed. The application is allowed. K. HEMA, JUDGE. mn.