IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Crl.MC.No. 2761 of 2008() ------------------------- CP.39/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY CRIME NO.40/05 OF THE EXCISE RANGE OFFICE, WADAKKANCHERY. .................... PETITIONER: ACCUSED ------------------- MADHAVAN, AGED 51 YEARS, S/O.SANKARAN, KALAPPURAKKAL HOUSE, KATTAVATTUR DESOM, DESAMANGALAM, TALAPPILLY TALUK, THRISSUR DT. BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL SRI.M.R.DHANIL RESPONDENTS: RESPONDENTS ------------------------ 1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, WADAKKANCHERY. 2. PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2761 of 2008 ------------------------------------------------- Dated this the 23rd day of July, 2008 ORDER The petitioner faces indictment in a prosecution for offences punishable under Sec.8 of the Kerala Abkari Act. He is the sole accused. He was allegedly found to engage himself in the activity of illicit sale of arrack. The offence was detected on 10/9/05. The details of the petitioner and his alleged culpable conduct are narrated vividly in the seizure mahazar prepared by the Excise officials. The occurrence report also shows the name and details of the petitioner as the accused. The petitioner was not arrested in the course of investigation and the final report dated 26/4/08 has been filed. The petitioner did not know about the filing of the final report and the taking of cognizance against him. In these circumstances, he has not appeared before the learned Crl.M.C. No. 2761 of 2008 -: 2 :- Magistrate. Committal proceedings are pending. Reckoning the petitioner as an absconding accused, coercive processes have been issued against the petitioner. Such processes are chasing the petitioner now. The petitioner apprehends imminent arrest. 2. According to the petitioner, he is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner, in these circumstances, wants to surrender before the learned Magistrate and seek regular bail. The petitioner apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is, in these circumstances, that the petitioner has come to this Court for a direction to the learned Magistrate to release him on bail when he appears before the learned Magistrate. 3. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider the petitioner's application for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. Sufficient general Crl.M.C. No. 2761 of 2008 -: 3 :- directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 4. Of course, another contention has been raised that the prosecution is liable to be quashed. It is contended that the allegations raised are false. The Excise officials may have come across some contraband articles and they are unnecessarily and vexatiously placing the blame for possession of such articles on the shoulders of the petitioner. The petitioner was, as a matter of fact, appearing before a court in connection with another pending proceedings. The Investigators have not shown the sincerity of purpose to arrest the petitioner. In these circumstances, it is evident that the allegations are totally false, submits counsel. 5. I shall carefully avoid any detailed discussions on merits about the sustainability of the allegations against the petitioners or the credibility of the data collected. I need only mention that, at the moment and with the available inputs, it is impossible for the Court to sail the safe conclusion that the allegations are false or that they are raised with vexatious intent. If vexation were the purpose, it passes one's comprehension as to how and why the Excise officials did not choose to arrest the petitioner even Crl.M.C. No. 2761 of 2008 -: 4 :- when he was admittedly appearing before the courts in another prosecution under the Abkari Act. At any rate, I need only mention that I am not persuaded to invoke the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. This plea that the prosecution should and ought to be quashed under Sec.482 Cr.P.C, cannot, in these circumstances, succeed. 6. In the result, this Crl.M.C. is dismissed; but with the observation that if the petitioner surrenders before the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. Needless to say, the application for bail will have to be considered in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2761 of 2008 -: 5 :-