IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Bail Appl..No. 3119 of 2009() -------------------------------------- CRIME NO.263/2009 OF KATTAKKADA EXCISE RANGE. PETITIONER/ACCUSED: --------------------------------------- VINOD, AGED 36, S/O.MADHAVA PANICKER, M.P.XIV/312, OLIPPUNADA, MALAYINKEEZHU VILLAGE, NEYYATTINKARA. BY ADV. SRI.R.T.PRADEEP RESPONDENT/COMPLAINANT: --------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.3119 of 2009 -------------------------------- Dated this the 7th day of July, 2009 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 1st accused in Crime No.263/2009 of Kattakada Excise Range. 2. The offence alleged against the petitioner is under Section 55(a) and 64A of the Abkari Act. 3. The prosecution case is that on 20/05/2009, a quantity of 350 litres of spirit was seized from the secret cellar of the building in the property belonging to the first accused. The learned counsel for the petitioner submitted that the property in question belong to the petitioner (first accused) and his wife as per the Annexure III document dated 28/01/2008. They agreed to sell the property in favour of the second accused as per the Annexure IV agreement dated 22/07/2008 for a consideration of Rs.5,00,000/- and a sum of Rs.4,50,000/- was taken as advance and possession of the property was given to the second accused. He was also B.A. No.3119 /2009 Page numbers permitted to construct a shed in the property. It is also stated that on 6/09/2008, while the first accused and his wife were going in a car, they met with an accident and the wife of the first accused died as a result of the accident. It is pointed out that the petitioner sustained injuries and he was hospitalized for a long time. Possession of the property in question was not with the petitioner since 22/07/2008 and even if the allegations made by the prosecution are accepted, the petitioner cannot be made criminally liable for the same. 4. The learned Public Prosecutor submitted that Crime No.371/2004 of Malayankeezhu Police Station is pending against the petitioner, wherein the petitioner is one of the accused persons. In that case, the allegation is that one lakh litre of Wash and 35 litres of arrack were seized from the underground storage of a building in the possession of the petitioner. 5. From the facts narrated as above, I do not think that the petitioner is entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. The ownership of the property from where the contraband was allegedly seized B.A. No.3119 /2009 Page numbers vests with the petitioner and the property was not transferred. 6. In these circumstances, I do not think that the petitioner can be granted anticipatory bail. For the aforesaid reasons, the Bail Application is dismissed. K.T. SANKARAN, JUDGE scm