IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Bail Appl..No. 6096 of 2009() ------------------------------------ CRIME NO. 391/2009 OF KADUTHURUTHY POLICE STATION ....................... PETITIONER/ACCUSED: --------------------------------- T. C. CHANDY, AGED 46 YEARS, S/O.LATE CHACKO, THYKKAL HOUE, MUTTUCHIRA PO., KADUTHURUTHY, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE,KADUTHURUTHY POLICE STATION, KOTTAYAM DISTRICT,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01/12/2009 ALONG WITH BA NO. 6314 OF 2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. Nos. 6096 and 6314 of 2009 ------------------------------------ Dated this the 1st day of December, 2009 O R D E R These Bail Applications are filed for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 7 in Crime No.391/2009 of Kaduthuruthy Police Station. 2. The offences alleged against the petitioners are under Section 55(a)(g)(h)(i), Section 58 and Section 55 D of the Abkari Act. 3. The prosecution case is that on getting secret information on 19.09.2009 that arrack was being sold in the building near the house owned by the first accused, the police party had gone to the place. The first accused owns the building and also a soda factory nearby. It is alleged that on the arrival of the police party at the scene, the first accused drove away in an Innova Car. The police party arrested accused Nos.2 to 6. It is alleged that accused Nos.2 to 4 were carrying cans containing 5 litres each of arrack. Two vehicles parked in the place were seized by the police. It is also alleged that one person ran away from the B.A. Nos. 6096 and 6314 of 2009 2 scene of occurrence. According to the prosecution, the person who ran away is the seventh accused. 4. It is contended by the learned counsel for the petitioners that accused Nos.2 and 3 were released on bail by the police. Accused No. 4 was granted bail by the Sessions Court. Accused Nos. 5 and 6 were granted regular bail by the High Court. 5. The learned counsel for the petitioners contended that the case is foisted against them. The reason for foisting the case is stated in the paragraph 6 of the Bail Application, which reads as follows: “It is submitted that A1/petitioner is an active worker and also office bearer of the political party, namely, Kerala Congress (M). He is the President of K.T.U.C., the labour wing of Kerala Congress (M) of the Kaduthuruthy legislative constituency. During the last parliament election, he was actively working for Sri. Jose K. Mani, M.P. The CPI(M) and its youth wing, DYFI, are highly inimical to the petitioner. The wife of the petitioner was the member of the Kaduthuruthy Grama Panchayath and also working at Poonjar service Co-operative bank. During the last parliamentary election, there was threat from the ruling party and its youth wing that the petitioner and his family will be ruined, B.A. Nos. 6096 and 6314 of 2009 3 if he continue to work in such a manner to help the candidate, Sri. Jose K. Mani. The petitioner is conducting a Small Scale Soda factory, very near to his residential house. In fact, the D.S.P, Kottayam also threatened the petitioner during election not to be very active in favour of Sri. Jose K. Mani. It is understood that the D.S.P. is posted at Kottayam at the mercy of the leaders of CPI(M) and also to support for the parliamentary election, the candidate of CPI(M). It is understood that A2 and A3 are planted by the police in collusion with D.S.P. and created the false case after planting the contraband in the soda Factory, in the vehicle, Jeep, and in the residential house. It is an admitted fact that A4 and A6 are the employees of the petitioner and they were arrested from the spot and extracted statements from them by using physical force in order to implicate the petitioner. It is pertinent to note that unlike in all other cases, the police seized the Soda factory for the reasons best known to them because there is no provision under the Abkari Act for seizing a place of occurrence unless the contraband is having huge quantity, unremovable from the premises. It is also an unbelievable story that out of 52/5 liters, 15 liters is seized from A2 to A4, 5 liters of each, another 5 liter from the Jeep and the B.A. Nos. 6096 and 6314 of 2009 4 balance quantity distributed in the house and the Soda factory. The reading of the prosecution case, FIR, mahazar etc., and the release of A2 and A3 by the police themselves clearly prove that the case is foisted one and created only to harass the petitioner at the instance of the political ruling party, who are inimical to the petitioner due to his active role in the parliamentary election.” 6. The learned Public Prosecutor submitted that he was instructed to submit that accused Nos.2 and 3 were persons who came to the place for purchasing arrack and that they were granted bail on account of the fact that the wedding of accused No.2 was to be solemnized on 21.09.2009. The question of release on bail of accused Nos.2 and 3 by the police need not be considered while disposing of this Bail Application. 7. On a consideration of the facts and circumstances of the case, prima facie, I am not inclined to accept the contention that the case in a foisted one against the petitioners. While disposing of the Bail Application, meticulous analysis of the contentions of the parties and the evidence is not feasible and proper, as adopting such a course would be prejudicial either to the accused or to the prosecution. B.A. Nos. 6096 and 6314 of 2009 5 8. On the basis of the materials on record, it cannot be stated that no case is made out against the petitioners. 9. In a case of this nature, I do not think it is proper to grant Anticipatory Bail to the accused persons. I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. The learned counsel for the petitioners submitted that the prosecution has collected all the relevant materials and it is not necessary to have custodial interrogation. At this juncture, it cannot be presumed that no custodial interrogation is required. It is for the investigating agency to conduct the investigation in the manner which is legal and proper. The question is whether the petitioners are entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. For the aforesaid reasons, I do not think that the petitioners are entitled to the relief as prayed for. For the aforesaid reasons, the Bail Applications are dismissed. K.T. SANKARAN, JUDGE ln