IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Bail Appl..No. 327 of 2010() ---------------------------- CP.181/2009 of J.M.F.C.-II,KOTTARAKKARA C.R.NO. 28/2007 OF CHADAYAMANGALAM EXCISE RANGE .................... PETITIONER/ACCUSED : ---------------------------- SHAMSUDEEN, S/O.MYTHEEN KUNJU RAWTHER, AGED 55 YEARS, ANSHAD MANZIL, ARKKANNOOR MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI. K.SIJU RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE, CHADAYAMANGALAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 327 of 2010 ------------------------------------ Dated this the 28th day of January, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in C.R. No. 28/2007 of Chadayamangalam Excise Range. 2. The offence alleged against the petitioner is under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 24.05.2007, the petitioner was found engaged in the sale of Indian Made Foreign Liquor. A quantity of 3.75 litres of I.M.F.L was seized from the possession of the petitioner. It is stated that the petitioner was not arrested at the crime stage. After completing the investigation, charge was laid in the case on 14.10.2009. The case is now pending as C.P. No. 181/2009 on the file of the Court of the Judicial Magistrate of the First Class-II, Kottarakkara. It is submitted that the Court has issued a non bailable warrant. The petitioner apprehends arrest in execution of the non bailable warrant. B.A. No. 327 of 2010 2 4. In Vineeth Somarajan @ Ambadi Vs. State of Kerala [2009 (3) KHC 471], it was held that in cases where non bailable warrant is issued by a court, the proper remedy of the accused is to approach that court which issued the warrant and to apply for recalling the warrant and for the grant of bail. It was also observed in Vineeth Somarajan's case that when such an application for bail is filed, the same has to be considered in the light of the principles laid down in Biju Vs. State of Kerala [2007(2) K.L.T. 280]. 5. In Sukumari Vs. State of Kerala [2001 (1) KLT.22], it was held that the power under Section 437 of the Code of Criminal Procedure can be exercised by the learned Magistrate, even in a case exclusively triable by the Court of Session. Reserving the right of the petitioner to move the Court which issued the non bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. K.T. SANKARAN, JUDGE ln