IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Bail Appl..No. 179 of 2008() ---------------------------- CR. NO.29/07 OF PALAKKAD EXCISE RANGE CRMP.4560/2007 of DISTRICT COURT, PALAKKAD .................... PETITIONERS : ACCUSED 1 & 2: ------------------------------- 1. P.K.UNNIKRISHNAN, S/O.KUNHAN NAIR, AGED 29 YEARS, VADUTHALA VEED, KALLUR DESOM, THRISSUR. 2. P.P.ANTO, S/O.PAILOTH, AGED 38 YEARS, PUTHENCHIRAKKARAN VEEDU, DIESEL LANE, PULLAZHI, THRISSUR. BY ADV. SRI.RAJESH CHAKYAT RESPONDENTS: COMPLAINANT: ------------------------- THE EXCISE INSPECTOR, PALAKKAD EXCISE RANGE, REP. BY THE LPUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY D.G.P. SRI. P.G. THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/01/2008, ALONG WITH BA NOS.188 AND 189 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. Nos.179, 188 & 189 OF 2008 ------------------------------------------------- Dated this the 29th day of January, 2008 ORDER Do we lack the societal, political and administrative will to deal with the problem of illicit movement of spirit in violation of the provisions of the Kerala Abkari Act in this State? Is it sheer incompetence or inexperience on the part of the Excise officials or is it the influence of pelf and power that compels the official machinery to be inactive and silent? Why are even decisions taken in the presence of top political executives – the Hon'ble Ministers of the Home and Excise Departments; not effectively implemented in the investigation of such major “spirit crimes”? Are the liquor barons so powerful that their writ and not even that of the Ministers run in this State, whatever be the hues of elected Governments? Cannot righteousness ever win the war against the affluent and powerful criminal? B.A. Nos.179, 188 & 189 OF 2008 -: 2 :- 2. These unpleasant and disturbing thoughts – yet unavoidable ones, come up in my mind when I attempt to dispose of these three applications for bail – all relating to the transportation of large quantities of spirit. The ineffective and pedestrian investigations in these cases are not any where near the really guilty and the Investigators appear to me to be in no mood to go deep to track the really guilty and bust them. 3. I have been sitting in this jurisdiction of bail for a fairly long period of time now. Such cases come very frequently before this Court and this Court has been crying hoarse over the quality of investigation in such crimes. It seemed that there was light at the end of the tunnel when in Pulpally Crime No.185/07 this Court had occasion to lament against the poor quality of investigation in such crime and the powers that be appeared to have been moved. At a high level meeting in the presence of the top brass of the political executive, decisions were taken inter alia to constitute (1) A Special Investigation Unit (SIU) in each District; (2) A Team at the State level to be known as the “Inter B.A. Nos.179, 188 & 189 OF 2008 -: 3 :- State Illicit Spirit Movement Investigation Team (ISISMIT); and (3) A State level Illicit Spirit Monitoring Cell (ISMC) to tackle the menace of illicit spirit movement in Kerala. When apprised of these orders, a confirmed optimist like me did fall into the complacent assumption that everything shall be fair and rosy hereafter. But a perusal of the Case Diaries in these cases confirms that at least in respect of these three cases those orders have not changed the scenario a wee bit. 4. The learned Director General of Prosecutions assures this Court that the needful is being done and hereafter in these cases as also in other such cases this Court can expect qualitative improvement in the efficiency of investigation. The story has been repeated so many times in this Court that I will not be justified in expecting anything better. I need only mention that I expect those who wield political power on behalf of the people to take note of the situation and device effective and efficient means to tackle the menace. Passing orders like the one dated 29/11/07 by the Director General of Police itself B.A. Nos.179, 188 & 189 OF 2008 -: 4 :- will be insufficient unless it is backed up by strong action to follow it up. 5. At least a direction must be issued and implemented firmly that all cases involving possession and transportation of spirit exceeding 500 litres must be investigated by the centrally controlled Special Investigation Teams. Such a direction, I assume, will go a long way to burst the spirit racket in this State which corrupts the entire administrative and political systems. 6. I shall now deal with the three specific applications for bail. B.A.No.179/08 On 2/12/07 on receipt of prior information a vehicle was intercepted. There were three persons in the vehicle. One ran away while the other two were apprehended and arrested. The driver and the other passenger in the vehicle, surprisingly and significantly, were not elaborately interrogated and their statements were not recorded. At least, no such statements are available in the Case Diary. The third is not even seen arrayed as an accused. On 7/1/08, the arrested accused came to this B.A. Nos.179, 188 & 189 OF 2008 -: 5 :- Court with an application for regular bail. Shocked at the nature of the efforts in investigation, a direction was issued on 14/1/08 to explain why this case was not investigated by a more senior official. The present Investigating Officer was given an opportunity to file a statement explaining to this Court the steps taken by him. 7. I am now informed that with effect from 24/12/07 an Inspector of Excise has taken over investigation. The attempt is to identify the owner of the vehicle. Nothing better or more spectacular appears to have been achieved. To say the least, the Case Diary reveals a sad tale of incompetence, want of inspiration and commitment. 8. The petitioners contend that they are entitled for regular bail, they having remained in custody from 2/12/07. The inadequacy of investigation notwithstanding the application is opposed and I find absolutely no reason why and how regular bail can be granted to the petitioners at this stage. In the wake of opposition by the learned Public Prosecutor, regular bail can be granted to the petitioners only if this Court is in a position to B.A. Nos.179, 188 & 189 OF 2008 -: 6 :- entertain both the satisfactions contemplated under Sec.41A of the Abkari Act. I am unable to entertain either of those two satisfactions. The inadequacy of investigation lies in the inability (or is it refusal?) of the Investigating Officers to trace higher links involved in such transportation of large quantity of spirit. I have no doubt in my mind that the petitioners by themselves may not be responsible for the entire operation. But that does not militate against the seriousness and gravity of the allegations against them. I am satisfied that the petitioners cannot be granted regular bail at this stage. 9. B.A.No.179/08 is, in these circumstances, dismissed. I may, however, hasten to observe that the dismissal of this petition will not in any way fetter the rights of the petitioners to claim bail by default under the proviso to Sec.167(2) of the Cr.P.C. as it does not at all appear to be probable that the final report shall be filed within a period of 60 days from the date of first remand. The petitioners can certainly approach the learned Magistrate and later this Court, if necessary, to claim such bail by default. B.A. Nos.179, 188 & 189 OF 2008 -: 7 :- 10. B.A.No.188/08: On 24/4/07, 1768 litres of spirit was transported in a mini lorry. Two persons were available in the vehicle. Both ran away and the Excise officials could not trace either of them. A mobile phone was available at the driver's seat. The display counter of the mobile phone allegedly showed the name of one Surendran. It was then assumed that the said Surendran must be one of the two who had ran away. He was shown as the 1st accused. No arrest was effected and the said Surendran came to this Court with this application for anticipatory bail on 7/1/08. The Case Diary again revealed depressing inactivity and want of commitment. Nothing worthwhile appears to have been done in the investigation of the case till 7/1/08 when this application for bail was filed. 11. When the matter came up on the first occasion (14/1/08) for hearing, the learned D.G.P. was requested to take instructions and the Investigating Officer was given an opportunity to appear and explain to the court the steps taken. The Investigating Officer till that day has not succeeded even in B.A. Nos.179, 188 & 189 OF 2008 -: 8 :- ascertaining the owner of the vehicle – a mini lorry which he seized. The Investigating Officer was going on a wild goose chase to identify the owner of the vehicle all the time. 12. It was revealed that the mobile phone was issued in the name of one lady by name Rani, the wife of the petitioner Surendran. The said lady, it is interesting to note, had filed a complaint dated 24/4/07 before the learned Magistrate accepting that she is the owner and contending that she had entrusted the vehicle along with the mobile phone of her husband to two persons named as accused. It was her very specific case that she was the owner and that the vehicle had been entrusted by her to two persons. Surprisingly and significantly the Investigating Officer did not come to know of that fact at all. The said Rani was summoned to appear before the Investigating Officer. Her statement was not recorded as such. She allegedly came to the Excise Office with a written statement that was obligingly received and she was not questioned. Want of questioning meant that the Investigating Officer remained blissfully ignorant of the complaint filed by her before the B.A. Nos.179, 188 & 189 OF 2008 -: 9 :- learned Magistrate which was forwarded by the learned Magistrate to the police under Sec.156(3) of the Cr.P.C. on the basis of which complaint an F.I.R. was also registered. 13. To quench my inquisitiveness I requested the learned Public Prosecutor to make the said Case Diary in the police case available to this Court. That reveals a more strange and depressing story. The Investigating Officer in that case states that the said Rani was not available at all for him to contact her. He did not know that the vehicle had been seized by the Excise officials and he took the decision that the investigation of the crime must be closed on the ground that the complainant is not co-operating. The Case Diary reveals that a decision has been taken to refer the case as undetected. The less said about the quality of investigation in both the Excise crime and the police crime, the better. The state of affairs must certainly cause concern. From 24/4/07 to 7/1/08 if this is the quality of investigation that can be achieved, one will have to read between the lines and come to the appropriate conclusion. I am now informed that a very active investigation is undertaken and that B.A. Nos.179, 188 & 189 OF 2008 -: 10 :- the needful shall be done. Be that as it may, I am primarily concerned with the prayer for anticipatory bail by the said petitioner Surendran who has been arrayed as the 1st accused. The learned counsel for the petitioner submits that the complaint by his wife Rani which was very promptly laid must convey to the court that not Surendran; but the persons who had taken the vehicle from her were responsible for running the lorry at the relevant point of time. No reasonable person can be naive and dumb to readily accept the version which has been conveniently advanced in the private complaint filed by the said Rani to assume that she and the petitioner Surendran have nothing to do with the transaction in question. 14. The powers under Sec.438 of the Cr.P.C. are to be invoked, it is trite, sparingly and in exceptional cases in aid of justice. Such powers cannot be invoked as a matter of course. When the court is satisfied that the powers of arrest are about to be invoked for ulterior, oblique and mala fide motives, such powers can certainly be invoked in aid of justice. At any rate, I am not satisfied that, in the facts and circumstances of this case B.A. Nos.179, 188 & 189 OF 2008 -: 11 :- and notwithstanding the deplorable quality of investigation, that the powers under Sec.438 of the Cr.P.C. can or ought to be invoked in favour of the petitioner. The prayer for anticipatory bail must hence fail. The petitioner, I agree with the Director General of Prosecutions, must be directed to surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. I find no features in this case that can persuade the court to invoke the extraordinary equitable discretion under Sec.438 of the Cr.P.C. 15. This petition – B.A.No.188/08, is accordingly dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. 16. B.A.No. 189 of 2008 This is an application for regular bail. Petitioner is the first accused. On 15.12.2007 the Excise Party allegedly found the petitioner moving with one can containing 35 litres of spirit. B.A. Nos.179, 188 & 189 OF 2008 -: 12 :- He was moving from one building towards a car that was parked on the road. They intercepted him. He was arrested. Examination of the car revealed that there was one more can containing 35 litres of spirit in the car. An inspection of the premises, from which the petitioner was moving towards the car, revealed that there was a huge quantity of spirit stocked and stored in that premises. The total quantity of spirit that was available was 8400 litres of spirit. The petitioner was arrested and the seizure was effected on 15.12.2007. The petitioner remains in custody. 17. On 7.1.2008 the petitioner came to this Court with this application for regular bail. When the matter came up for hearing on 14.1.2008, the learned D.G.P. had placed the case diary before me. I have perused the same. Here again the quality of the investigation was abysmally poor. The learned D.G.P. was requested to take instructions and to make appropriate submissions. The case diary revealed that there was no proper and systematic examination of witnesses. Here again the thrust of the attempt was only to identify the owner of the B.A. Nos.179, 188 & 189 OF 2008 -: 13 :- vehicle and nothing else. A thorough interrogation of the petitioner, who was arrested on 15.12.2007, did not take place until this Court issued directions on 14.1.2008. It is now stated that in the course of investigation it has been revealed that one Sudevan, who, in the course of discussions at the Bar it is conceded, is the son of a retired Excise official, is the one who instructed the petitioner to go to the premises and lift some quantity of spirit to the car belonging to Sudevan. It is now submitted that at long last on 26.1.2008 the said Sudevan has been arrayed as an accused and he has been arrested. Investigation is inching forward. But the source of the consignment, consignor, the person who facilitated storing of the consignment in the building in question etc. were not ascertained till very recently. A submission is now made at the Bar that the original owner of the premises, one Jaison, is also being arrayed as an accused. The said premises belonged to him originally. Because of some arrears of amount payable to the K.S.F.C. the premises were attached and it remained in the possession of the Government i.e. the Recovery authority. It is B.A. Nos.179, 188 & 189 OF 2008 -: 14 :- during such time, it is submitted that the premises were used for such illicit storage of such large quantity of liquor. Even now except the statement of the first accused, which indicates culpability of the second accused, who at long last was arrested on 28.1.2008, investigation has not made any significant progress to ascertain the sources. 18. Be that as it may, my primary concern is the application for bail of the petitioner. The learned counsel for the petitioner submits that the petitioner is an innocent scape goat, who happened to be present there. He has no connection with the car which was there or the spirit which was found stored both in the car as also in the building in question. According to the learned counsel for the petitioner, the petitioner is a goods autorikshaw driver, who unfortunately happened to be present at that time when the detecting party was present at the scene. He was not carrying any can or spirit, contends the counsel. The counsel strenuously contends that the said Sudevan is actively involved and the efforts of the Investigators is to spare him. Only when this Court issued direction and it became clear that B.A. Nos.179, 188 & 189 OF 2008 -: 15 :- the issue cannot be avoided any longer, the Investigators have now arrayed the said Sudevan as an accused, submits the counsel. 19. Any inadequacy on the part of the Investigating Officer to properly investigate the case cannot deliver any advantage to the petitioner herein. No doubt, I am dissatisfied with the quality of investigation. I am disturbed that in such a case where 8400 litres of spirit is allegedly seized, this is the quality of investigation and the results achieved so far. But all that, according to me, will not confer any advantage to the petitioner. The present Investigating Officer reports to me that the petitioner has subsequently been interrogated a number of times in judicial custody in the presence of the Prison authorities. More and more relevant pieces of information have been collected from the petitioner. 20. Here again it must be noted that Section 41 A of the Abkari Act comes into play. In the wake of opposition regular bail cannot be granted to the petitioner unless both the satisfactions contemplated under Section 41A of the Kerala B.A. Nos.179, 188 & 189 OF 2008 -: 16 :- Abkari Act are entertained. In the facts and circumstances of this case I am unable to entertain either of those two satisfactions. 21. This application also hence deserves to be and is hence dismissed. But I may hasten to observe that the petitioner shall be at liberty to move this Court or the courts below for bail again at a later stage of the investigation, not at any rate, prior to 12.2.2008. 22. I may again express my fond hope that the undertaking of the learned Director General of Prosecutions shall be given effect to and a proper investigation shall be conducted. It will not be inapposite in this context to finally mention that I am at a loss to understand why inspite of the orders issued by the Director General of Police dt. 29.11.2007, investigation into these crimes involving more than 1000 litres of spirit are not entrusted to the ISISMIT. Clause (2)(D) of the said order reads as follows: “This Team (ISISMIT) may take over investigation of any major existing, or to be reported, cases of suspected Inter State Illicit Movement of B.A. Nos.179, 188 & 189 OF 2008 -: 17 :- spirit, registered either by the Police or by the Excise Department after 1.1.2007 with the consent of the Zonal ADGPS r the Addl. Excise Commissioner, as may be applicable.” Inspite of such specific direction issued, consequent to a high level meeting called by the Home Minister and the Excise Minister of Kerala, even in cases like this the investigation has not been handed over to more competent hands. The reason eludes me. I am unable to understand. It is submitted that the order is issued by the Director General of Police and not by the Excise Commissioner. There must be proper co-ordination between the various departments of the Government if effective investigations were to be conducted. If such a decision is taken in the meeting of the Home Minister and Excise Minister, I am certain a serious view must be taken as to why inspite of such specific stipulations the investigation has not been handed over to ISISMIT in these cases. I cannot find any better case which can be transferred for investigation to ISISMIT if those directions were intended to be enforced. 23. It does not require the wisdom of Solomon to B.A. Nos.179, 188 & 189 OF 2008 -: 18 :- understand that there is a common thread running through all these and such other cases which reveal that very powerful lobbies are controlling the spirit movement into and within the State. I repeat that only iron will, societal, political and administrative, alone can help us to tackle such crime syndicates and to defeat organised crimes of this nature, which experience reveals, is the mother of many other crimes in the State. (R. BASANT, JUDGE) Nan/tm