IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Bail Appl..No. 7433 of 2008() ----------------------------- CRIME NO.720/08 OF KADAKKAL POLICE STATION PETITIONER -------------------- RAJENDRA PRASAD AGED 53, S/O.RAMAKRISHNAN, JALAJA MANDIRAM, CHITHARA, KOLAM . BY ADV. SRI.PRAVEEN K. JOY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KADAKKAL POLICE WSTATION. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 7433 of 2008 ----------------------------------------- Dated this the 6th February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 55(a)(l) of the Kerala Abkari Act. According to prosecution, 4.5 litres of Indian made foreign liquor were seized from a hotel by name, 'Iran'. First accused is the salesman, who was arrested from the spot on 7.11.2008, since he was engaged in sale of liquor. Petitioner is the owner of the hotel and he was also arrayed as second accused, though he was not present at the scene. 3. Learned counsel for petitioner submitted that petitioner's name is “Rajendra Prasad” and he is not 'Iran'. The case is registered against “Iran” and not “Rajendra Prasad”. It is also submitted that petitioner is a chronic cancer patient and he is undergoing treatment. Therefore, anticipatory bail may be granted, it is submitted. 4. Learned Public Prosecutor opposed this bail application and submitted that petitioner is also known as 'Iran'. He is the owner of the hotel, from where the article is BA.7433/08 2 seized. This fact is revealed from the case diary. Petitioner is implicated as the owner of the hotel. 5. On hearing both sides, considering the serious allegations made against petitioner and the nature of the gravity of the offence committed, I am satisfied that it is not a fit case to grant anticipatory bail. In a case involving offence under the Abkari Act, even bail under Section 437 Cr.P.C cannot be granted unless innocence of the accused is established, in view of Section 41A of the Abkari Act. Except bare assertions, there is nothing to show that petitioner is not the owner of the hotel, from where the article is seized. Petitioner is answerable for the constructive possession of the contraband article. 6. Though petitioner is stated to be a chronic cancer patient, who is unable to move about, Annexure-I document only shows that he is under continuous treatment and he had made a visit to the hospital between 5.11.2008 to 11.11.2008. The document will not also show his actual physical state at present. However, the physical state of petitioner may be relevant under the proviso to Section 437 Cr.P.C and rejection of anticipatory bail may not by itself be a ground to reject bail BA.7433/08 3 under Section 437 Cr.P.C. If the court is satisfied that petitioner is entitled for the benefit under the proviso to Section 437 Cr.P.C, it is made clear that consideration for grant of anticipatory bail and bail under Section 437 Cr.P.C are different. Petitioner is at liberty to surrender before the Magistrate Court concerned and move application for bail under Section 437 Cr.P.C, in which event, the application will be disposed of on merit as expeditiously as possible, untrammelled by any of the observations made by this Court on merit. All the observations made in this order are only for the purpose of deciding whether anticipatory bail can be granted or not. In the above circumstances, the following order is passed: Petitioner is directed to surrender before the investigating officer or the Magistrate Court concerned and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. With this direction, petition is dismissed. K.HEMA, JUDGE vgs.