IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Bail Appl..No. 9183 of 2011() ------------------------------------------ (CRIME NO.871/2011 OF SREEKARIYAM POLICE STATION, THIRUVANANTHAPURAM) ........ PETITIONERS(S): --------------------------- 1. BIJU B,AGED 26 YEARS,S/O.BALACHANDRAN, PUTHUVAL PUTHENVEEDU,PULAYANARKOTTA, THRUVIKKAL P.O, THIRUVANANTHAPURAM. 2. VIJAYAKUMAR V, AGED 34 YEARS,S/O.VIDYADHARAN, SYAMALAYALAM,PULAYANARKOTTA, THURUVIKKAL,THIRUVANANTHAPURAM. BY ADVS. SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN. RESPONDENT(S):STATE: --------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM (CRIME NO.871/2011 OF SREEKARIYAM POLICE STATION, THIRUVANANTHAPURAM). BY PUBLIC PROSECUTOR SRI. NOUSHAD THOTTATHIL THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J ---------------------------- B.A. NO. 9183 OF 2011 -------------------------- Dated this the 2nd day of December, 2011. O R D E R Petition under Section 438 of the Code of Criminal Procedure in Crime No.871/2011 of Sreekariyam Police Station for offences under Sections 55(a), (h) and (i) of Abkari Act. The petitioners have moved this petition with a statement that they are neither involved in the offence alleged nor arrayed as accused and sought for an order directing the respondent to release the petitioners on bail in the event of arrest with a plea that they are innocent. 2. The learned Public Prosecutor submitted that the case was originally registered against Jayan and Binu, regarding the seizure of 52 litres of Indian Made Foreign Liquor and on investigation, it is revealed that the petitioners are the real accused and a report was filed to substitute the petitioners in the place of accused 1 and 2 shown in First Information Report and that custodial interrogation of the petitioners is warranted. 3. In the above circumstance, in the event of respondents, enquired about the petitioners, it could not be said that it is with any ulterior motive with intention for or detention or torture. Having due regard to the nature of the offence alleged, request of the prosecution for interrogation cannot be B.A. NO. 9183 OF 2011 2 declined. Therefore, I find that this is not a fit case to invoke jurisdiction under Section 438 of the Code of Criminal Procedure. In the result, this petition is disposed of with direction to the petitioners to surrender before the Investigating Officer. The Investigating Officer after interrogation shall produce the petitioners before the Magistrate concerned, so as to enable the petitioners to apply for regular bail, which the learned Magistrate shall dispose of, on merits, as far as possible on the same day, provided due notice is given to the Assistant Public Prosecutor. P.S.GOPINATHAN, JUDGE amk