IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 21ST APRIL 2009 / 1ST VAISAKHA 1931 Bail Appl..No. 2063 of 2009(C) -------------------------------------- CR.NO.17/2009 OF THIRUVALLA EXCISE RANGE PETITIONER/2ND ACCUSED : ----------------------------------- MADHU.P.K., POLACHIRAYIL VEEDU, VENPALA, KUTTOOR, THIRUVALLA. BY ADV. SRI.T.P.PRADEEP RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------- B.A. No.2063 OF 2009 --------------------------------------- Dated this the 21st day of April, 2009 O R D E R This regular bail application is preferred by the second accused in Crime No.17/2009 of Thiruvalla Excise Range where the offences involved are under Sections 55(a), 58 and 67B of Kerala Abkari Act. 2. The allegation is that on 31.03.2009, the first accused transported 150 litres of Indian made foreign liquor in the petitioner's Petty Auto Rickshaw which was stopped by the excise party attached to the Thiruvalla Excise range and the foreign liquor in the iron trunk were Old Cask XXX Rum where issued to BSF persons for their use. 3. I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that he was not aware of the contents of the iron trunks while travelling to the house of the first accused and first accused is working in BSF and the contraband article which alleged to have seized are issued to BSF persons for their use. The learned Public Prosecutor stoutly opposed this petition. B.A.No.2063 of 2009 2 5. I have carefully considered the contentions advanced by the learned counsel for the petitioner as well as the learned Public Prosecutor. The only contention raised in this petition is that the petitioner is not aware of the contents of the trunk which belonged to the first accused when the first accused hired the Petty Auto Rickshaw for the purpose to go to the house of the first accused. On the other hand, the prosecution allegation is that it is in the Petty Auto Rickshaw of the petitioner from where the contraband article was seized. Whether the contraband article was transported with the consent or not of the petitioner, is a question of fact to be settled at the time of trial. Therefore, on the mere allegation that the petitioner was not aware of the contents of the trunk, bail cannot be granted to the petitioner especially in view of the conditions stipulated under Section 41A(b)(ii) of the Abkari Act. In the result, there is no merit in the petition and accordingly, the same is dismissed. V.K.MOHANAN JUDGE pac