IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Bail Appl..No. 7894 of 2008() ---------------------------------------- CRIME NO. 57/2008 OF KATTAPPANA EXCISE RANGE ........... PETITIONER (S):3RD ACCUSED ------------------------------ K.M,.MATHEW S/O.MATHAI, KAKKAD HOUSE, VELLAYAMKUDY P.O. KATTAPPANA, IDUKKI DISTRICT. BY ADV. SRI.JOHN K.GEORGE RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 7894 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 27th day of January,2009 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 8(2) of the Abkari Act. According to prosecution, five litres of arrack were seized from a toddy shop of which petitioner (A3) is the licensee. Salesman (A1) was arrested from the spot. Manager (A2) ran away and he could not be arrested so far. 3. Learned counsel for petitioner submitted that though the petitioner is the licensee, he is not actually conducting the business in the toddy shop personally. He is running a ration shop and Manager (A2) is entrusted with the running of the toddy shop and hence, petitioner may be granted anticipatory bail, it is submitted. He has no knowledge of sale of arrack in the shop, it is submitted. It is also pointed out that accused 1 and 2 were already released on bail. Learned counsel for petitioner submitted that petitioner is having heart disease and he requires valve replacement and documents are produced to BA 7894/2008 -2- prove the same as Annexures-II to IV. 4. This petition is opposed. Learned Public Prosecutor submitted that on investigation, it is revealed that sale of arrack is being conducted in the toddy shop with the knowledge and connivance of petitioner and it is not correct to say that he has no role in the business. On hearing both sides, considering the nature of allegations made, I do not think that this is a fit case to grant anticipatory bail. The physical state of petitioner may not by itself be a ground for granting anticipatory bail. It is needless to say that consideration for grant of anticipatory bail is different from consideration for grant of bail under section 437 Cr.P.C. If petitioner is physically sick and infirm, he may apply for bail before the lower court and take up the contentions. It is made clear that none f the observations made in this oder on merit, if any, will stand in the way of the learned Magistrate disposing of the application for bail, on merit . Hence, petitioner is directed to surrender before the Magistrate court concerned or before the Investigating Officer without any delay and co- operate with the investigation. Whether he BA 7894/2008 -3- surrenders or not, police is at liberty to arrest him and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.