IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 Bail Appl..No. 304 of 2009() ------------------------------------------- (CRIME NO.18/2009 OF PATHANAMTHITTA POLICE STATION) PETITIONER(S): ACCUSED: --------------------------------------------- WILSON, PUTHENPURAYIL VEEDU, VAZHAMUTTOM EAST,MULLASSERY, PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT: ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 304 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23rd day of January,2009 O R D E R Petition for bail. 2. The alleged offences are under sections 8(2) and 55(g) of the Abkari Act. According to prosecution, Circle Inspector of Police, Pathanamthitta received information that illicit distillation of arrack was going on under the leadership of petitioner as well as one Suresh and he proceeded to the spot along with other police officials on 7-1-2009 at about 2 a.m. and on reaching river bank, he found petitioner engaged in distillation of arrack along with four others and on seeing the police party, they escaped from the scene abandoning the articles. 48 litres of arrack and 980 litres of wash and utensils were seized from the place and F.I.R. was registered against petitioner and four identifiable persons. 3. Petitioner was arrested on 11-1-2009. Learned counsel for petitioner submitted that the Circle Inspector of Police has enmity towards petitioner and hence, this case was falsely foisted against petitioner. On suspicion, petitioner was taken into custody in a case under the caption “man missing” registered as Crime no.537/2007. He was, thereafter, detained in the police station and tortured by police and hence, his wife BA 304/2009 -2- was forced to file a petition under section 97 Cr.P.C. before the Magistrate Court as per Annexure-A3. A commission was ordered to confirm illegal custody of petitioner in the police station. But, on getting information about the proceeding before the court, the petitioner was released on 6-7-2007. He was hospitalized in the District Hospital and he was treated in the hospital for the injuries sustained at the hands of police and a crime was registered as Crime no.551/2007 in respect of the said incident, which was subsequently referred. 4. On 4-8-2007 petitioner's wife filed a private complaint alleging offence under sections 324 and 342 IPC etc. in respect of the custodial torture against her husband (petitioner) and it was taken on file by the Magistrate Court. Since Circle Inspector of Police is a public servant, sanction was required under section 197 Cr.P.C. and a petition was filed for sanction. But, it was rejected as per Annexure-A4 order dated 26-11-2008. In the meanwhile, crime no.551/207 was investigated into and referred by the police on 6-8-2007. So, as it is, all the steps taken by petitioner in respect of custodial torture did not yield any result. However, petitioner's wife has challenged Annexure-A4 order by which the sanction under section 197 Cr.P.C. was refused in W.P.(C) no.63/2009 and it is posted to 29-1-2009 . BA 304/2009 -3- 5. Because of the steps taken by petitioner and his wife against the atrocities committed by Circle Inspector of Police and under his leadership, by the other police officials, a case is registered against petitioner falsely implicating him as the 1st accused, when a crime under Abkari Act was detected by the Circle Inspector of Police. The Circle Inspector of Police had preplanned registration of such a crime against petitioner, as indicated in the refer report Anneuxre-A2 dated 6-8-2007 wherein it is specifically stated that petitioner is engaged in illicit arrack business. Petitioner was never involved in any abkari offence either before or after the incident. Event though in the refer report it is mentioned that petitioner is having illicit liquor business, no crime was registered against petitioner at any time or any day prior to such filing of report. But the Circle Inspector of Police was only laying a foundation for registration of crime falsely against petitioner and that is what is done by him by registration of present crime against petitioner. Petitioner is in custody from 11-1-2009 onwards and he may be granted bail, it is submitted. 6. This petition is opposed. Learned Public Prosecutor submitted that petitioner's name finds a place in the F.I.R. itself. Petitioner was identified by the Circle Inspector of Police and his BA 304/2009 -4- details are shown in the F.I.R. itself. There are witnesses also and hence, it cannot be said that it is a false case, it is submitted. The alleged motive of the Circle Inspector of Police is denied. 7. On hearing both sides, on considering the various submissions made by learned counsel for petitioner, which are supported by various documents, I am satisfied that petitioner has a strong defence to put forward in the present case. It can be established only during trial. In the light of what is disclosed from the various documents and submissions made, I do not think that it will be just and proper to detain petitioner any further custody. 8. Hence, petitioner shall be released on bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate, on the following condition:- Petitioner shall not commit any offence while on bail. This petition is allowed. K.HEMA, JUDGE. mn.