IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Bail Appl..No. 781 of 2009() ---------------------------- (C.R.NO.12/2009 OF KOTTARAKKARA EXCISE RANGE, KOLLAM DISTRICT) PETITIONER/ACCUSED NO.3 ------------------------------------------- T.VIJAYAN, S/O.THAMPI, VALIYAMADAM HOUSE, KOOTTATHALA DESOM, MYLAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KOTTARAKKARA EXCISE RANGE KOLLAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Bail Appl. No. 781 of 2009 --------------------------------------------------- Dated this the 19th day of February, 2009. ORDER Petition for anticipatory bail. 2. The alleged offence is under Section 55(a) of the Abkari Act. petitioner is accused no.3. Accused nos. 1 and 2 are employees of the licensee, who is the 3rd accused. According to prosecution, 1420 litres of toddy were seized on 6.2.2009 from a building taken on rent by the licensee of the toddy shop no.14, who is the third accused. The licensed building is 20 meters away from the building from where the seizure was effected. Hence, a crime was registered. Accused nos. 1 and 2 were found dealing with toddy at the time of seizure. 3. Learned counsel for petitioner submitted that there is only violation of licence condition as per the allegations made and hence it will only amount to offence under Section 56(b) of the Abkari, which is bailable, with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. Petitioner is a licensee of the shop and even if the entire allegations are accepted, petitioner has [B.A.No.781/2009] 2 committed only a bailable offence. But, if the petitioner surrenders, he will be remanded since, the offence quoted is under Section 55(a) of Abkari Act, which is a non-bailable offence. It is also submitted by Learned counsel for petitioner that in the light of the decision reported in Mohanan v. State of Kerala [2007 (1) KLT 845), in a case of this nature the offence attracted will be under Section 56(b) of Abkari and not under Section 55(a) of Abkari Act. 4. This petition is opposed. Learned Public Prosecutor submitted that considering the allegations made, this is not a fit case to grant anticipatory bail. However, he fairly conceded that as per the allegations in the mahazar, the toddy was kept in violation of the license conditions. It is true that accused nos. 1 and 2, who were the employees of 3rd accused, were granted bail by this Court as per order dated 18.2.2009 in B.A. No.770 of 2009. But, that cannot be made a ground to grant anticipatory bail in a case of this nature. 5. On hearing both sides, considering the rival contentions, it appears that as per the details in the mahazar, the allegation is that petitioner has kept toddy in violation of the conditions of licence which attracts offence under Section 56(b) of the Abkari Act, which is a bailable offence. Anticipatory bail [B.A.No.781/2009] 3 cannot be granted if offence alleged is bailable. Petitioner may seek his remedy before the committal court, in which event, offence will be treated as one falling under Section 56(b) of Abkari Act for the purpose of bail. Petitioner are bound to surrender and hence the following order is passed: 1) Petitioner shall surrender before the investigating officer without delay and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. 2) No further application for anticipatory bail by the petitioner in this crime will be entertained by this Court. Petition is dismissed. K. HEMA, JUDGE. Krs.