IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Bail Appl..No. 7672 of 2008() ----------------------------- OR.NO.24/08 OF EXCISE ENFORCEMENT & ANTI NARCOTIC SPECIAL SQUAD, IDUKKI PETITIONERS/ACCUSED --------------------------------------- 1. VARKEY @ ROY, S/O. VARKEY, ERATTHU HOUSE KATTADIKAVALA KARA,THANKAMANI VILLAGE, UDUMBINCHOLA TALUK, IDUKKI DISTRICT. 2. JOSEPH @ SAJU, S/O. VARKEY, ERATTHU HOUSE, KATTADIKAVALA KARA THANKAMANI VILLAGE, UDUMBINCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI,SHYAM ARAVIND RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 7672 of 2008 ----------------------------------------- Dated this the 6th February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 55(g) of the Abkari Act. According to prosecution, petitioners, who are accused 1 to 3 were found in possession of 1200 litres of wash and utensils for distillation of arrack and they were about to distill arrack. The crime was detected on 25.9.2008. Petitioners ran away and on the way, electoral identity card of the second accused and his lunki were dropped while chasing. Those also were seized. 3. Learned counsel for petitioners submitted that petitioners are innocent of the allegations made. They were implicated only because there was an incident on 30.6.2008 in front of the Excise office in Thankamony, on the allegation that first accused herein along with other UDF workers attacked the Excise range office and also assaulted an official. A crime was registered as Crime No.622/2008. Because of this enmity, the present crime is registered against petitioners and they BA.7672/08 2 are not actually involved. The allegation that the electoral card was in the possession of second accused, when he was allegedly engaged in distillation, is highly improbable and hence, anticipatory bail may be granted, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that the details of petitioners are recorded in the occurrence report and also in the mahazar. Those persons were identified by the persons in the locality and their statements are also there in the case diary. It is not correct to say that petitioners are falsely implicated. It is also submitted that the crime was detected not by any officials in Thankamony Excise Range, but it was detected by the Excise Enforcement and Anti Narcotic Special Squad, Idukki. The allegations of motive against the officials are denied. 5. On hearing both sides, considering the serious nature of the allegations made and in the absence of any special circumstance to grant anticipatory bail, I am not inclined to invoke the provision under Section 438 Cr.P.C. I am satisfied that it is not a fit case to grant anticipatory bail to petitioners. However, petitioners may raise the same contentions before BA.7672/08 3 the appropriate court at the time of filing of application under Section 437 Cr.P.C., in which event, bail application will be disposed of untrammelled by any of the observations made by this Court in this order. It is made clear that the observations made in this order are only for the purpose of considering whether anticipatory bail can be granted or not. Consideration for anticipatory bail and bail under Section 437 Cr.P.C are different as well settled. In the above circumstances, the following order is passed: (1) Petitioners are directed to surrender before the investigating officer and co- operate with the investigation. Whether they surrender or not, police is at liberty to arrest them and proceed in accordance with law. (2) No further application for anticipatory bail by petitioners in this crime will be entertained by this Court. With this direction, petition is dismissed. K.HEMA, JUDGE vgs.