IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 Bail Appl..No. 3644 of 2010() ----------------------------- CP.37/2009 of ADDL.C.J.M., ERNAKULAM .................... (Cr No.28/2006 of Thripunithara Exchange Range, Ernakulam District which is not pending as C.P No.37/2009 on the file of the Addl.Chief Judicial Magistrate Court, Ernakulam.) PETITIONER/ACCUSED NO.10 -------------------- OQBAL, S/O.MUHAMMED PULPRAYIL HOUSE, VELLOORKUNNAM KARA, MUVATTUPUZHA, ERNAKULAM DISTRICT. ' BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, THRIPUNITHURA EXCISE RANGE REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A No.3644 OF 2010 -------------------------------- Dated this the 11th day of June 2010 ORDER This petition is for bail. 2. The alleged offences are under Sections 8(2) and 55(a) of Abkari Act. According to prosecution, on the Sea Port - Airport Road, a lorry was found parked on 10/11/2006 at about 8 P.M. 10,590 litres of spirit was siezed from the vehicle. The first accused is stated to be the driver of the vehicle and the nineth accused is the cleaner who were ran away. On investigation, it is revealed that the vehicle was in possession of fifth accused and it was arranged by second, third and forth accused for transportation of spirit. The sixth, seventh, eighth and tenth accused were allegedly engaged in transportation of spirit. 3. Learned counsel for petitioner submitted that petitioner was implicated as 10th accused without any basis. Though the crime was registered in the year 2006, it is only by a report filed after three years on 02/01/2009 that petitioner was implicated as an accused for the first time. In the same year, charge sheet was also laid against the petitioner. Petitioner was not sought to be arrested at any point of time either during investigation. Even after the charge sheet was laid only summons was issued from the court and he appeared in court in obedience of the summons B.A No.3644 OF 2010 2 on 09/06/2010, the day appointed for his appearance, as per the summons. But, the learned Additional Chief Judicial Magistrate remanded the accused to custody. 4. As per the decision reported in Sreekumar v State of Kerala (2008(3) KLT 748), an accused who appears on summons shall not be remanded. Though this decision was brought to the notice of the learned Additional Chief Judicial Magistrate, petitioner was remanded, it is submitted. It is also pointed out that the witnesses who are cited in the charge sheet to speak against the petitioner are CW19 and CW20. and they are none other than the brothers of petitioner. The memo of evidence will not show that speak are being examined to state petitioner's role in the present case It appears that they are cited to state that petitioner is habitually engaged in transportation of spirit. 5. Learned Public Prosecutor submitted that the learned Additional Chief Judicial Magistrate has acted against the dictum laid down in Sreekumar v State of Kerala ( 2008(3) KLT 748). Hence, he has no objection in granting bail to the petitioner. 6. On hearing both sides , I am satisfied that bail can be granted to the petitioner. Whatever be the quantity of liquor involved, the question is whether petitioner is involved in the offence or not and if he was involved, whether he had B.A No.3644 OF 2010 3 absconded. The learned Magistrate having taken a decision to issue only summons, there is no justification in remanding the accused to custody, he having appeared before the court as per summons. Hence the following order is passed. Petitioner shall be released on bail on executing bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the court concerned, on condition that petitioner shall not influence or intimidate any witness or tamper with any evidence. Petition is allowed. K.HEMA JUDGE vdv