IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 Bail Appl..No. 136 of 2008() ---------------------------- C.R.NO.302/05 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ALAPPUZHA PETITIONER/4TH ACCUSED --------------------------------------- SAMKUTTY, S/O.GEORGE, AGED 41 YEARS, PADINJARE MANIL KOYIKKAL MURIPEL VEEDU, KONNI P.O., PATHANAMTHITTA. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF EXCISE, (C.R.NO. 302 OF 2005) EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, ALAPPUZHA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY D.G.P. SRI. P.G. THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 136 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2008 O R D E R Application for anticipatory bail. This is yet another of those cases which reveals inaction, want of will, efficiency, application and commitment for investigation into a crime, which involves transportation of a large quantity of illicit spirit. Petitioner is the 4th accused. 2. An officer of the Railway Protection Force, honest he appears to me, came across suspicious parcels brought through the Railways being loaded into a vehicle. He was alert to take action - evidently to the disapproval of many other officials. He arrested accused 1 to 3, seized the articles and the vehicle into which this consignment of 1050 litres of spirit ( 35 x 30) were being loaded and handed over the accused, the consignment and the vehicle to the local Excise officials. Then starts the tale of contumacious collaboration. Though the offence was detected on 24.11.2005, the case diary reveals that till 4.1.2008 when this bail application was filed, nothing fruitful or purposeful was B.A.No. 136 of 2008 2 done in the investigation of the crime. This Court, after seeing the case diary on 6.2.2008, directed that the Investigating Officer must appear in person and file a statement explaining the steps that have been taken. The learned D.G.P. was requested to appear and assist the court. 3. The statement has been filed. Significantly there is no worthwhile explanation for the contumacious collusion, lethargy and inaction on the part of the Investigating Officer. Accused 1, 2 and 4, the petitioner herein, are brothers and accused No.3 is a close relative of theirs. The petitioner/A4 is the registered owner of the vehicle. It is not necessary for anyone to conduct any investigation to ascertain that the petitioner is the registered owner of the vehicle, as he had shortly after the vehicle was seized, filed an application before the Excise officials for return of the vehicle claiming to be the registered owner. The Investigating Officer in his statement states and the case diary reveals that all the while nothing has been done by the Investigating Officer except to make attempts to ascertain the registered owner of the vehicle, which the petitioner had claimed long back that he is. B.A.No. 136 of 2008 3 4. The seizure mahazar clearly shows that the consignment was brought to Mavelikkara Railway station as a railway parcel. On the cover of the consignment there were marks and numbers revealing the parcel item. Elementary curiosity must have prompted the Investigating Officer to ascertain, who was the consignor and who was the consignee. Significantly till this date, I am on 14.2.2008, the name of the consignor or the consignee has not been ascertained by the Investigating Officer. The learned D.G.P. submits that the wheels have started moving now and within the last two days attempt has been made to question the railway authorities and it is understood that one Ramesan of Mavelikkara had booked the consignment. What should shock the good sense of all concerned is that that information was not ascertained till now, nay even the semblance of an attempt is not seen made during the past about three years to ascertain the consignor and the consignee. 5. This Court has been lamenting over the deplorable quality of investigation in cases where transportation of large quantity of spirit is involved. There cannot be a worse instance of such contumacious collaboration between the officials of the State and the offenders. I B.A.No. 136 of 2008 4 shudder to think that such things can happen in a society wedded to rule of law and where the superior officials are expected to supervise the investigation. The present Investigating Officer submits that he took over the investigation only on 15.7.2007. The state of events do not bring credit to either the present Investigator or whoever had conducted the investigation prior to 15.7.2007. The learned DG.P. submits that the D.G.P. is satisfied that except inefficiency there is absolutely no contumacious involvement or motive for any one. 6. I have heard the learned D.G.P. I find it difficult to swallow the said explanation offered. This is an eminently fit case where the head of the Excise Department must certainly look into the sequence of events and take appropriate action in the matter. I, therefore, direct the Commissioner of Excise to look into the case diary in detail and report to the Court what action he proposes to take for the deplorable quality of investigation in this crime. Await such response of the Commissioner of Excise. He shall file a statement giving details. 7. Coming to the prayer for anticipatory bail, the petitioner is admittedly the registered owner of the vehicle, which has been ordered B.A.No. 136 of 2008 5 to be released to him. He pleads ignorance of the contents of the consignment which was entrusted to the person in charge of the vehicle for transportation. He prays that anticipatory bail may, in these circumstances, be granted to him. 8. The learned D.G.P. opposes the application. He submits that for a proper and efficient investigation, which he expects to be conducted in the matter hereafter, the interrogation of the petitioner is absolutely essential. 9. I have considered all the relevant inputs. I have gone through the case diary. Though totally and thoroughly dissatisfied with the nature of investigation that has been conducted, I am satisfied that, for a proper investigation to be conducted, custodial interrogation of the petitioner is necessary and in that view of the matter I choose not to invoke the discretion under Section 438 Cr.P.C. in favour of the petitioner. The petitioner, I am satisfied, must co-operate with the Investigators. He must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 10. This application is accordingly dismissed. I may however B.A.No. 136 of 2008 6 hasten to observe that if the petitioner appears before 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 orders on merits, in accordance with law and expeditiously. 11. Call this petition again on 25.2.2008 for response of the Commissioner of Excise. (R. BASANT) Judge tm