IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 Bail Appl..No. 267 of 2008() ---------------------------- CRIME NO.185/07 OF PULPALLY POLICE STATION : PETITIONER/ACCUSED ----------------------------------- ANISH V.S., AGED 29, S/O.SREEDHARAN, VAYAPURATH HOUSE, PANAVALLY P.O., KATTIKULAM. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY C.B.C.I.D., CALICUT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.267 of 2008 ------------------------------------- Dated this the 21st day of January, 2008 ORDER Application for anticipatory bail. Petitioner is the 1st accused arrayed in a crime registered under the Kerala Abkari Act. A lorry containing 8,540 litres of spirit was found abandoned on 29.06.07. The contraband liquor and the lorry were seized. Investigation is in progress. This Court did have occasion earlier to consider the sequence of events in this case in many bail applications. Thorough dissatisfaction of this Court in the conduct of the investigation has already been expressed and thereafter the C.B.C.I.D has taken over the investigation and the investigation is in progress. It is not completed yet. 2. The prosecution now has a theory that the 15th accused had imported the contraband liquor from outside Kerala. He had allegedly entrusted the spirit with the lorry to the 8th accused to drive the lorry into Kerala. The 8th accused, contrary to his understanding with the 15th accused, had allegedly hatched a conspiracy to divert the contraband liquor to Wayanad. He had allegedly contacted the 1st accused. The 1st accused/the petitioner herein had, in turn, contacted accused 5 and 7. The B.A.No.267 of 2008 2 petitioner had arranged accused 10 to 14. They assembled in a lodge at Telicherry. In pursuance of the conspiracy hatched, accused 2 and 9 took the lorry from Taliparamba to Pulpally. Accused 10 to 14 allegedly accompanied the lorry. The petitioner/the 1st accused had allegedly contacted accused 5 and 7 for disposal of the contraband liquor. The petitioner/the 1st accused had allegedly got into the lorry also when it was brought to Pulpally. He entered the lorry en route. The mission did not succeed and at that point, the 7th accused, allegedly tipped the police officer feigning himself to be an informer. 3. I have only attempted to narrate the case as explained to me by the learned Public Prosecutor. The crime was registered on 29.06.07. The petitioner was brought on the array as the 1st accused w.e.f 12.09.07. Till this date, the petitioner has not been arrested. Investigation is in progress. The petitioner has now surfaced and has come to this Court with this petition claiming anticipatory bail. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Except the alleged statement of the co-accused, no tangible material has been collected by the investigators to rope in/the petitioner as one of the conspirators or as one who had any role in the alleged B.A.No.267 of 2008 3 transportation of this spirit. In these circumstances, the petitioner may be granted anticipatory bail, it is prayed. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the materials collected in this case, a substantial portion of which is allegedly the statements of the co-accused, reveal the complicity of the petitioner convincingly. The petitioner's complicity is very evident from the materials collected. The petitioner has to be interrogated to get further clues. At this stage of the investigation, there is absolutely no necessity to permit the petitioner to be armed with an order of anticipatory bail before he faces the investigators and answers their questions. For a proper resolution of this crime, thorough interrogation of the petitioner is essential. He will be arrested and dealt with purely in accordance with law. At this stage, this Court may not consider the application for bail of the petitioner favorably. Such consideration is likely to hamper the smooth course of the investigation. It would affect the ability of the police to resolve the crime expeditiously. The petitioner may be directed to resort to the ordinary and normal course of appearing before the investigator or the learned Magistrate having jurisdiction and then seek B.A.No.267 of 2008 4 regular bail in the ordinary course. In a serious crime like this, the extraordinary equitable discretion under Section 438 Cr.P.C may not be invoked in favour of the petitioner, submits the learned Public Prosecutor . 5. I have considered all the relevant inputs. I have had occasion earlier to peruse the case diary in this case. I shall carefully avoid any detailed discussion about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that on an anxious consideration of all the relevant inputs, I agree that there is force in the opposition by the learned Public Prosecutor. I am unable to perceive any features in this case which can even remotely suggest or warrant the necessity to invoke the discretion under Section 438 Cr.P.C. 6. This bail application is, in these circumstances, dismissed with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and applies for 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. (R.BASANT, JUDGE) rtr/- B.A.No.267 of 2008 5