IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Bail Appl..No. 4591 of 2010() ----------------------------- (CRIME NO.601/2010 OF KOLLAM WEST POLICE STATION) PETITIONERS/ACCUSED 2 AND 3 ----------------------------------------------- 1. SANTHOSH, AGED 40 YEARS, S/O.BALAKRISHNAN, THOTTUMKARA VEEDU, AYATHIL P.O., KOLLAM -17. 2. VIJAYAKUMAR @ OMANAKUTTAN, AGED 38 YEARS, S/O.BALAKRISHNAN, THOTTUMKARA VEEDU, AYATHIL P.O., KOLLAM-17. BY ADV. SRI.ALAN PAPALI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, (CRIME NO.601/2010 OF KOLLAM WEST POLICE STATION- SUB INSPECTOR OF POLICE, KOLLAM WEST POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17/08/2010, ALONG WITH B.A NO.4698/2010. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A No.4591 AND 4698 OF 2010 -------------------------------- Dated this the 17th day of August 2010 ORDER This petition is for anticipatory bail. 2. The alleged offences are under Sections 55(a) and (i) and 57 A and 58 of the Abkari Act. According to prosecution, on 20/07/2010, at about 1:25 p.m, Sub Inspector of police conducted a search in a toddy shop and the premises and seized 7 litres of spirit and 35 litres of toddy mixed with spirit from a property which is situated adjacent to the toddy shop. First accused is the licensee, and second and third accused are running the toddy shop and the articles seized were intended for sale in the toddy shop. Therefore, a crime was registered against the petitioners. 3. Learned counsel for petitioners (A1 to A3) submitted that no contraband article was seized from the toddy shop. The articles seized in this case were from the property of one Paul which situates 49 meters away from the toddy shop. Petitioners are not liable for such seizure or possession of the said articles. They have nothing to do with the articles. The prosecution has not produced any materials to indicate that petitioners have anything to do with the contraband articles seized in this case. 4. Second and third accused used to finance first accused. But, mere payment of money for running a toddy shop will not be B.A No.4591 AND 4698 OF 2010 2 sufficient to fasten any criminal liability on accused numbers 2 and 3, it is submitted. Learned counsel for first accused also pointed out that first accused was not even present at the scene at the time when the seizure was effected. He is not liable for the materials seized from any property other than the toddy shop. It is also submitted by learned counsel for first accused that the western side of the toddy shop is an abandoned area and some other persons used to conduct parallel sale of liquor from the said property about which first accused had filed a complaint before the Superintendent of police and the copy of the complaint is Annexure D. If at all anything is seized from the western side of the shop, petitioners are not liable, it is submitted. 5. These petitions are strongly opposed. Learned Public Prosecutor submitted that as per the materials available in the case diary, the articles seized in this case were intended for sale in the toddy shop. There are reliable materials to show that the toddy and spirit were mixed by accused numbers 1 to 3 for the purpose of sale from the toddy shop. First accused is the licensee, but, the toddy shop is being run actually by second and third accused, who are financing the first accused and the details of the Demand Draft issued by the accused are available in the case diary. Petitioners are required for the purpose of custodial interrogation to ascertain the manner in which the offence is committed and whether any B.A No.4591 AND 4698 OF 2010 3 other person is also involved in this offence. 5. On hearing both sides and on going through the case diary, I find that it cannot be said that this case is registered without any basis. The investigation is in progress and petitioner's custodial interrogation is required for the purpose of an effective investigation. Though the spot from where the article is seized is situate about 49 meters away, as pointed out by Learned Public Prosecutor, the said property is situated adjacent to the toddy shop. I am satisfied that if the petitioners are granted anticipatory bail and an opportunity for custodial interrogation is denied to the investigating agency, it will adversely affect the investigation. Petition is dismissed. K.HEMA JUDGE vdv