IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 Bail Appl..No. 8148 of 2007() ----------------------------- CRIME NO.312/07 OF THE PULPALLY POLICE STATION PETITIONER/ACCUSED: ------------------------------------ VARGHESE, S/O.VARGHESE, KUTTIYIDAYIL HOUSE, PADICHIRA AMSOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, PULPALLY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 8148 OF 2007 ------------------------------------------------- Dated this the 9th day of January, 2008 ORDER Application for anticipatory bail. The petitioner faces allegations under the Kerala Abkari Act. The crux of the allegations against the petitioner is that he kept in his possession 24 litres of Indian Made Foreign Liquor in a shop taken on lease by him for the purpose of illicit sale. The police, on receipt of discreet prior information, conducted a search of the premises and recovered the said quantity of Indian Made Foreign Liquor from the premises. The petitioner was not available in the premises. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that there is no contention that the IMFL which was found available in the premises is not licit liquor without the security seal of B.A. No. 8148 OF 2007 -: 2 :- the Beverages Corporation. No allegations to that effect have been raised. Hence the learned counsel for the petitioner contends that no offence under Sec.55(a) of the Abkari Act can lie. The learned counsel for the petitioner further contends that there is nothing to show that the petitioner is the person who was in possession of the premises. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that satisfactory inputs have been collected by now to confirm that the premises was in the possession of the petitioner herein. 4. The learned Public Prosecutor submits that though the Section of offence is shown as Sec.55(a) of the Abkari Act, in fact, the allegations reveal an offence under Sec.55(i) of the Abkari Act inasmuch as the petitioner is alleged to have stored this consignment of IMFL for the purpose of sale. In fact, discreet prior information was received that the petitioner was storing and selling IMFL unauthorisedly and that is what prompted the action. 5. In the nature of the contentions raised, the learned Public Prosecutor was directed to place the Case Diary before me for my perusal. I have perused the same. 6. It is, of course, true that the Section of offence is shown B.A. No. 8148 OF 2007 -: 3 :- as Sec.55(a) and not Sec.55(i) of the Abkari Act. I agree with the learned Public Prosecutor that the inadequacy in the correctness of the Section quoted cannot be entitle the petitioner to the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. in his favour. I do also note that there is no material collected to show that the petitioner was actually present at the premises or was indulging in the illicit sale of the IMFL. But it must be noted that what is punishable under Sec.55(i) of the Abkari Act is not only illicit sale of liquor but also storage of liquor for illicit sale. The available inputs must certainly lead to the conclusion that the storage must have been for sale in the absence of any better explanation forth coming from the accused. It is significant that the accused does not have a case that the storage was for any purpose other than sale. At the moment, the allegations raised by the police do appear to be fair and acceptable. I am not satisfied, at any rate, that the petitioner, in these circumstances, is entitled to the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. in his favour. I agree with the learned Public Prosecutor that this is a fit case where the petitioner must resort to the ordinary and normal course of appearing before the Investigating Officer or the learned B.A. No. 8148 OF 2007 -: 4 :- Magistrate having jurisdiction and then seek regular bail in the usual course. 7. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or 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. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge