IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 Bail Appl..No. 4332 of 2009 CRIME NO.293 OF 2009 OF MALAPPURAM POLICE STATION PETITIONER/ACCUSED -------------------------------------- K.T.KUNHIMOIDEEN, S/O. MUHAMMED, ARATTUTHODI HOUSE, KALAMPADY, KAVUNGAL, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/1/2010, THE COURT ON 27/01/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4332 OF 2009 ------------------------------------------------------ Dated this the 27th day of January, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.293 of 2009 of Malappuram Police Station. 2. The offences alleged against the petitioner are under Section 3 of the Essential Commodities Act, 1955 and the relevant provisions of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. 3. The gist of the prosecution case is the following: On 8.5.2009, the Taluk Supply Officer got secret information that gas refilling was illegally being conducted in building No.1/134 of Koottilangadi Grama Panchayat. On the basis of the information, the Taluk Supply Officer and the team of officers inspected building No.1/134 referred to above at 11.55 AM on 8.5.2009 in the presence of witnesses. In the room in question, the Taluk Supply Officer and his team found several gas cylinders of different weights, counter balance, different types of weights and three gas cylinders for domestic use. The inspecting team was fully satisfied that gas B.A. NO. 4332 OF 2009 :: 2 :: refilling in different types of cylinders for non-domestic use was being done by using the gas cylinders intended for domestic use. A mahazar was prepared and the gas cylinders and other articles and equipments were seized. According to the prosecution, the petitioner was also present at the time of inspection. 4. The learned counsel for the petitioner submitted that the building does not belong to the petitioner. It is no evidence to show that he was in possession of the room at the relevant time. There is no material to connect the petitioner with the offence. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have also perused the case diary. The investigating officer has collected sufficient materials to arrive at the prima facie conclusion that the petitioner was in possession of the room in question. The statements of the landlady and the other persons would disclose that the petitioner was in possession of the room in question as a tenant. The question whether the petitioner has committed the offence is a matter to be considered at the time of trial. At this stage, it cannot be decided whether the offence is established or not. B.A. NO. 4332 OF 2009 :: 3 :: 6. It is to be noted that in the First Information Statement, the section of offence is mentioned as Section 3 of the Essential Commodities Act and “Section 51 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000”. There is no Section 51 in the said Order. In the facts and circumstances of the case, probably the relevant provisions in clauses 4, 5 and 7 may apply to the case. That a wrong provision was quoted in the First Information Statement is not a ground for granting anticipatory bail, as held in Parakash V. State of Kerala: 2009 (4) KLT 348= 2009 (4) KHC 329. 7. The offence alleged against the petitioner is serious in nature. I am of the view that the petitioner is not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. Custodial interrogation of the petitioner may be required in the case. If anticipatory bail is granted to the petitioner, it would adversely affect the proper and smooth investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/