IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 25275 of 2008(H) -------------------------- CP.118/2007 of J.M.F.C.-I, KOLLAM .................... PETITIONER: --------------------- GOPALAKRISHNAN, S/O.VIDHYADHARAN, CHAMAKKALA VEETTIL, PERUMKULAM, KALAYAPARA, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.SAJU.S.A RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF EXCISE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, OFFICE OF THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE CIRCLE INSPECTOR OF EXCISE, EXCISE E & AN SPECIAL SQUAD, KOLLAM. BY GOVERNMENT PLEADER SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- W.P.(c)No. 25275 of 2008-H ------------------------------------------------- Dated this the 21st day of August, 2008 JUDGMENT The petitioner faces indictment as 1st accused in a prosecution for offences punishable under Secs.56(b) and 57(a) of the Kerala Abkari Act. The alleged offences were detected in 1997 by the Excise officials. After investigation, final report has been filed and cognizance has been taken in 2007. The petitioner, who was not arrested at any earlier point of time, now finds a warrant of arrest issued by the learned Magistrate chasing him. According to the petitioner, he is absolutely innocent. He was always available and was willing to co- operate with the Investigators. Most unjustifiably without arresting the petitioner or without informing the petitioner all the need to seek bail, he has been shown as an accused in the final report without any specific statement as to why he has not W.P.(c)No. 25275 of 2008-H -: 2 :- been arrested at all. The petitioner was always available for arrest. Cognizance was taken by the learned Magistrate on the basis of the final report. Reckoning the petitioner as an absconding accused, a non-bailable warrant of arrest has been issued against the petitioner. The petitioners finds such processes chasing him. The petitioner apprehends imminent arrest. 2. According to the petitioner, he is absolutely innocent. His omission/failure to appear before the Investigating Officer or the learned Magistrate earlier was not wilful or deliberate. The petitioner, in these circumstances, wants to surrender before the learned Magistrate and seek regular bail. The petitioner apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is, in these circumstances, that the petitioner has come to this Court for a direction to the learned Magistrate to release him on bail when he appears before the learned Magistrate. 2. It is for the petitioner to appear before the learned W.P.(c)No. 25275 of 2008-H -: 3 :- Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider the petitioner's application for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 3. In the result, this writ petition is dismissed; but with the observation that if the petitioner surrenders before 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 – on the date of surrender itself. 4. Though in this writ petition quashing of the proceedings is claimed, at the stage of hearing, that relief is not pressed. It is prayed that it may be observed that the petitioner shall be W.P.(c)No. 25275 of 2008-H -: 4 :- entitled to claim discharge at the stage of Sec.227/228 Cr.P.C. Needless to say, that right under the Code will be available to him. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge