IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Bail Appl..No. 3664 of 2010() ----------------------------- CP.37/2009 of ADDL.C.J.M., ERNAKULAM .................... (S): PETITIONER/ACCUSED NO.4 ------------------------------------------- P.V.RAJEEVAN, AGED 39,S/O. NARAYANAN, KAITHERICHAL PUTHENVEETTIL, ORUVICHAL P.O., MATTANNUR, THALASSERY, KANNUR. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KREALA, TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF EXCISE, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Bail Application No.3664 of 2010 ---------------------------------------------- Dated 21st June, 2010. O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 8(2) and 55 (a) of the Kerala Abkari Act. According to prosecution, on the Sea Port - Airport Road, a lorry was found parked on 10.11.2006 at about 8 p.m. 10,590/- litres of spirit were seized from the vehicle. The first accused is stated to be the driver of the vehicle and the 9th accused is the cleaner, who ran away. On investigation, it was revealed that the vehicle was in possession of 5th accused and it was arranged by 2nd, 3rd and 4th accused for transportation of spirit. The 6th, 7th, 8th and 10th accused were allegedly engaged in transportation of spirit. 3. Learned counsel for petitioner submitted that petitioner received summons from the court and he appeared through counsel and filed an application for excusing his absence. But, the court rejected the same, stating that petitioner was not on bail. Petitioner is a disabled person and both his eyes are impaired and a certificate, Annexure II is produced to show that BA NO.3664/10 2 he is having 100% permanent visual disability. 4. It is pointed out that in the first page of the charge sheet itself, it is alleged that the R.C. owner is CW-11 and the lorry was purchased in the name of 4th accused(petitioner) for the use by second accused, who is his brother. The allegations made in the charge sheet will show that all further transactions were done by second accused and other persons. Petitioner is absolutely innocent of the allegations made and he is apprehending arrest, in view of warrant issued by the court. 5. It is also pointed out that 10th accused was remanded to custody on his appearance on summons and bail was granted by this court, taking into consideration that the remand was illegal since the accused appeared on summons. Petitioner apprehends that he will face the same fate as that of 10th accused, and in case he is remanded, he will suffer irreparable injury, it is submitted. 6. This petition is strongly opposed. Learned Public Prosecutor submitted that petitioner has purchased the lorry in his own name. Even if he is disabled, he cannot dispute the fact that the lorry was purchased in his name. He had executed BA NO.3664/10 3 documents for the purchase of the lorry and even if it is purchased for the use of second accused, petitioner cannot put forward the present defence and get exonerated from the criminal liability, it is submitted. Petitioner's role in the offence cannot be denied as it is specifically stated in the charge sheet that the lorry is purchased in the name of 4th accused, it is submitted. 7. Learned Public Prosecutor also submitted that petitioner failed to appear on receipt of summons and even if the order of the court below in issuance of summons is wrong, petitioner's remedy is not to apply for anticipatory bail. The mere fact that court below has issued warrant is not a ground to get anticipatory bail, it is submitted. It is further pointed out that 10th accused was granted only regular bail and in the peculiar facts and circumstances of the case, in view of the fact that the court remanded the accused in violation of the dictum laid down in Sreekumar v. State of Kerala (2008(3) KLT 748), he was granted bail. The 10th accused was brought into the array of accused only after three years of the incident, at a highly belated stage and he was implicated only as per the charge sheet for the first time. BA NO.3664/10 4 8. On hearing both sides and on appreciation of the facts and circumstances of the case, I find that petitioner is apprehending arrest only because a warrant is issued by the court below. Petitioner has not challenged the said order. A reading of the allegations made against petitioner would show that the lorry was purchased in his name and the contraband articles were seized from the said lorry, though the possession was transferred from person to person till the date of occurrence. It is true that there is a statement in the charge sheet that the lorry was purchased in the name of 4th accused for use by second accused, who is his brother. 9. On an overall evaluation of all the aspects, I am of the view that petitioner may, if so advised, surrender before the Magistrate Court concerned and seek bail and raise all the contentions before the same court. It is also to be noted that in the order dated 11.6.2010 in B.A.3644/10, this Court had observed the illegality committed by the committal court in remanding 10th accused, in violation of the dictum laid down in Sreekumar v. State of Kerala (2008(3) KLT 748). 10. Learned counsel for petitioner submitted that BA NO.3664/10 5 petitioner is prepared to surrender before the Magistrate Court concerned tomorrow itself. Hence, the following order is passed : Petitioner shall surrender before the Magistrate Court concerned tomorrow and seek relief under Section 437 of the Criminal Procedure Code, in which event, learned Magistrate shall take into consideration all the relevant aspects and dispose of the application in accordance with law, as expeditiously as possible, on merits, untrammelled by the observations, made by this Court if any, on merits in this order. Petition is disposed of accordingly. K.HEMA, JUDGE. tgs