IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Bail Appl..No. 6223 of 2009 CRIME NO.201 OF 2003 OF KARUNAGAPPALLY EXCISE RANGE PETITIONERS/1ST AND 2ND ACCUSED -------------------------------------------------- 1. JYOTHISH KUMAR, S/O.RAMESHAN, AGED 25, AMBANATTU THEKKETHIL, KULASHEKARAPURAM VILLAGE, ATHINAD VADAKKUMURI, KARUNAGAPPALLY, KOLLAM DISTRICT. 2. BINU, S/O.KUMARAN, AGED 27 PUTHENKANDATHIL KIZHAKKETHIL, KULASHEKARRAPURAM VILLAGE, KOTTAKKUPURAM MURI, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.K.R.SUNIL RESPONDENT: COMPLAINANT -------------------------- THE PREVENTIVE OFFICER, EXCISE RANGE OFFICE, KARUNAGAPPALLY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6223 OF 2009 ------------------------------------------------------ Dated this the 29th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are the accused persons in Crime No.201 of 2003 of Karunagappally Excise Range. 2. The offence alleged against the petitioners is under Section 55(g) of the Abkari Act. 3. The date of occurrence was on 18.11.2003. The prosecution case is that the petitioners were found keeping in possession of seventy litres of wash. 4. Learned Public Prosecutor submitted that the final report was filed on 30.6.2009 and the case is now pending as C.P.No.178 of 2009, on the file of the Court of the Judicial Magistrate of the First Class, Karunagappally. Learned counsel for the petitioners submitted that the petitioners apprehend arrest as non-bailable warrant was issued by the Court. B.A. NO. 6223 OF 2009 :: 2 :: 5. In Vineeth Somarajan @ Ambady v. State of Kerala (2009 (3) KHC 471), it was held that where non-bailable warrant is issued by the court on account of non-appearance of the accused, the remedy of the accused is to file an application for withdrawal of the warrant and for the grant of bail. It was also noticed in that decision that when such an application for bail is filed, the learned Magistrate has to dispose of the Bail Application taking into account the principles laid down in Biju v. State of Kerala (2007(2) KLT 280). 6. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. Reserving the right of the petitioners to apply for regular bail, this Bail Application is closed. (K.T.SANKARAN) Judge ahz/