IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Bail Appl..No. 5742 of 2008() ----------------------------- CRIME NO.294/2008 OF POOYAPPALLY POLICE STATION PETITOINER (S): ACCUSED: ---------------------------- BIJU, PAVITHRALAYAM, PERUMKULAM, MALAYIL, VELIYAM KOTTARAKKARA. BY ADV. SRI.SAJU.S.A RESPONDENT(S): STATE: --------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 5742 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October,2008 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 8(2) of the Abkari Act. According to prosecution, petitioner (A2) and 1st accused were found in possession of seven litres of arrack. 3. Learned counsel for petitioner submitted that even as per the prosecution allegation that petitioner was found holding a glass but it is not sufficient to prove possession of liquor. It is the case of the prosecution that on enquiry made the witnesses stated that petitioner was also in possession of the article. But, independent witnesses had only hearsay information about possession, as seen from their statement and therefore, petitioner may be granted anticipatory bail, it is submitted. According to learned counsel for the petitioner, petitioner is working as a head load worker in front of the police station and petitioner is not arrested because the police themselves are not sure that petitioner is the offender. 4. This petition is opposed. Learned Public Prosecutor submitted that the crime was registered as early as in the year BA 5742/08 -2- 2003 and the petitioner was absconding for the past five years. The charge sheet was laid, as early as on 20-3-2004. Learned Public Prosecutor also submitted that petitioner could not be arrested and committal proceedings are in a stand still because of the non-availability of the petitioner. There are materials to connect petitioner with the crime. Non-bailable warrant was issued against petitioner, since he was absconding and hence, it is not a fit case to grant anticipatory bail, it is submitted. 5. It is submitted by learned counsel for petitioner that in the light of the dictum laid down in Sukumari V. State of Kerala (2001(1) KLT 22) Magistrate Court itself can grant bail under section 437 Cr.P.C. Hence, it is submitted that a direction may be issued to the learned Magistrate to consider bail application and dispose of the same in the light of the decision cited above. 6. On hearing both sides, in an offence of this nature I do not think it fit to grant anticipatory bail, especially since petitioner was allegedly absconding for the period of more than five years. 7. On hearing both sides, I find that this is not a fit case to grant anticipatory bail. Petitioner shall surrender before the learned Magistrate within seven days from today and if any BA 5742/08 -3- bail application is filed, it shall be disposed of after hearing both sides on merit, as expeditiously as possible and the dictum laid down in the decision reported in 2001(1) KLT 22 shall also be looked into. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.