IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 Bail Appl..No. 9401 of 2011 CRIME NO.50 OF 2011 OF EXCISE RANGE, ERNAKULAM. PETITIONERS/ACCUSED 1 & 2 --------------------------------------------- 1. HARIKESH PRASAD,S/O.JIRKKUTT RAM, COMPUNDER VILLAGE,BALIYA DISTRICT, UTTAR PRADESH. 2. MUKESH,S/O.RATHILAL,KRISHNA NIVAS, 2/646,ASARI LANE,KARIKKAMURI DESOM, ERNAKULAM VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.B.JAYASURYA RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE EXCISE INSPECTOR,EXCISE RANGE,ERNAKULAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 9401 OF 2011 ------------------------------------------------------ Dated this the 24th day of November, 2011 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. Petitioners are accused Nos.1 and 2 in Crime No.50 of 2011 of the Excise Range, Ernakulam. 2. The offences alleged against the accused are under Sections 55(a) (i) and 58 of the Abkari Act. 3. The prosecution case is that on 8.11.2011, the accused persons unauthorisedly transported and they were found in possession of 881 bottles of wine, having a total quantity of 660.75 litres. The contraband was seized when attempt was made to remove the same from the platform of the Ernakulam South Railway Station. The petitioners were arrested on 8.11.2011 and they were remanded to judicial custody. 4. The learned counsel for the petitioners submitted that the BAIL APPL. NO.9401 OF 2011 :: 2 :: first accused is having valid licence to transport wine from New Delhi to Margoa. It is also submitted that, as per Annexure A5 letter issued by the Northern Railway, the first accused is entitled to transport the goods by rail touching any of the stations mentioned therein. Since the goods could not be unloaded at Margoa, the same was taken to Ernakulam and they were unloaded at Ernakulam South Railway Station for the purpose of transporting the same to Margoa. At that juncture, the goods were seized. Annexure A5 letter reads as follows: “Sub: Allotment Letter for the contract of Leasing of 04 Tonnes FSLR compartment in Train No.2432 Ex.HNZM to TVC for a period of three years. Ref: Tender dtd. 15/05/2009. In reference to above, it is to inform you that the contract of Leasing of 04 Tonnes FSLR compartment in Train No.2432 Ex.HNZM to TVC has been allotted to M/s.D South Cargo Movers, 32-A< NANGLI RajaPur, Sarai Kale Khan, East Nizammuddin, Delhi-13 by the competent authority for a period of three years @ Rs.25,566/- per day for 04 tonnes with the facility of loading & unloading at KOTA, BRC, BSR, PNVL, RN, MAO, MAIN, SRR, TCR and ERS for 03 day in a week i.e., Tuesday, Wednesday & Sunday. The loading will BAIL APPL. NO.9401 OF 2011 :: 3 :: effect from 04/12/2009. An additional amount of 2% of the lump sum per day leased freight of the leased parcel space should be collected as the “Terminal Development Charges” at the time of depositing the freight. It is therefore, decided to allow the party to start the work from 04/12/2009. A copy of the agreement executed between Railway Administration and the party would follow in due course. Please note that leave to he leaseholder will be granted as per provisions of terms and conditions of the agreement. Please note that there will be no budgetary increase applicable during the currency of the contract. Kindly arrange to issue free numbered platform permit (s) with photograph having validity of one year for 08 laborers for loading and unloading the SLRs subject to completion of all commercial formalities. Kindly also arrange to issue entry pass for TWO vehicles having validity of One year if required. Sd/- 3/12/09 For Divisional Railway Manager/Comml. New Delhi.” BAIL APPL. NO.9401 OF 2011 :: 4 :: 5. Prima facie, I am not inclined to accept the contention raised by the counsel for the petitioners that M/s.Brindco Sales Ltd., New Delhi, in which the first petitioner is an employee, is entitled to transport the goods to Cochin on the basis of Annexure A5 letter issued by the Northern Railway. The letter only indicates that the Company would be entitled to transport 4 tonnes of goods per day. That does not mean that the Company or any of its employees would be entitled to transport anything and everything. Only those goods which can be legally transported, could be transported on the basis of Annexure A5 letter. Transporting of any of the goods covered by the Abkari Act could be done only as per the provisions of the Act. There is no case for the petitioners that any permission or “no objection” was obtained from the authorities concerned to transport wine from Margoa to Cochin. 6. The investigation is at the initial stage. If the petitioners are released on bail at this stage, it would adversely affect the proper investigation of the case. It is also most likely that the petitioners would influence or intimidate the witnesses and tamper with the BAIL APPL. NO.9401 OF 2011 :: 5 :: evidence. It is also likely that the first petitioner may make himself scarce if bail is granted to him. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/