IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Bail Appl..No. 5354 of 2008() ----------------------------- CRIME NO.108/08 OF KUMBAMMETTU POLICE STATION PETITIONERS/ACCUSED:- ----------------------------------------- 1. ELDOSE @ SANOJ, AGED 31 YEARS, S/O JOHNEY, PUTHENPURACKAL HOUSE, VAYALAKAR NAGAR, KOCHARA KARA, ARANAKKARA VILLAGE, IDUKKI DISTRICT. 2. BABU, AGED 28 YEARS, S/O KURIAKOSE, KADAPIL HOUSE, SULTHAN MEDU BHAGAM, KOCHARA KARA, KARUNAPURAM VILLAGE, IDUKKI DIST. 3. THOMASKUTTY, AGED 40 YEARS, S/O CHERIYAN, KADANTHODE HOUSE, KOHARA KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT. 4. JOSEPH CHERIYAN, AGED 43 YEARS, S/O CHERIYAN, KADANTHODE HOUSE, KOCHARA KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.C.C.ABRAHAM RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, KAMBAMMEDU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.5354 of 2008 ----------------------------------------- Dated this the 20th October, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 8(2) of the Abkari Act. According to prosecution, the police conducted a raid in a forest and found accused 1 to 6 altogether and 5800 litres of wash and 120 litres of illicit arrack were seized from the spot. All the accused ran away. Later, on arrest of accused 4 and 5, it is revealed that accused 1 to 7 were all in possession of the articles. Accused No.8 employed these persons who were engaged in the illegal activities. Accused No.9 supplied those materials to these persons. Accused 8 and 9 are brothers. 3. Learned counsel for petitioners submitted that no person was arrested from the spot and as per the allegation, only six persons were found in possession of the articles. But now, there are nine accused. The petitioners are accused 6 to 9. They are totally innocent of the allegations made. The police deliberately included the petitioners in the array of accused with ulterior motive, since they had grudge against the petitioners, it is submitted. The illegal distilling was going on with the connivance of the respondent police and the petitioners were protesting against the same and hence, BA.5354/08 2 petitioners are made accused in the crime. There are only vague allegations and the petitioners may be granted anticipatory bail, it is submitted. 4. This petition is strongly opposed. Learned Public Prosecutor submitted that six persons were actually seen at the spot as per the allegations, but it is only after arrest of accused 4 and 5 that the full picture was revealed in this case. As per the allegations, all the accused are now involved and they have specific involvement in the crime. In a case of this nature, it is not proper to grant anticipatory bail, it is submitted. It is also submitted that the allegation made against the police is denied. 5. On hearing both sides, I find that there is only oral assertion by learned counsel for petitioners regarding the innocence of the petitioners. Learned Public Prosecutor has made it clear that as per the materials collected in the investigation, petitioners have definite role in the offence. Though the petitioners would contend that they were working against illicit distilling etc., there is only bald assertion, which is not supported by any materials. Though the petitioners would contend that the police has deliberately implicated the petitioners, since they are working against the liquor mafia, it was pointed out by learned counsel for petitioners himself that there is a delay in implicating the BA.5354/08 3 petitioners in the offence. The report, by which the petitioners' names were included, reached the court only on 31.7.2008. 6. If as a matter of fact the police had deliberate intention to implicate the petitioner, there was no reason for the delay in making the false implication. The nature of the allegations are such that it is not a fit case to grant anticipatory bail. In an offence under the Abkari Act, once the petition is opposed, if the petitioners are not able to establish that they are innocent of the allegations made and that they will not repeat the offence, even grant of bail is not possible, in view of Section 41A of the Abkari Act. The crime was detected as early as on 18.7.2008. The petitioners were not available for arrest so far even after expiry of three months. Hence, the following direction is issued: The petitioner shall surrender before the investigating officer or the Magistrate Court concerned within seven days from today and co- operate with the investigation and make themselves available for interrogation and if the petitioners file any application for bail, it shall be disposed of as expeditiously as possible. With these directions petition is dismissed. K.HEMA, JUDGE vgs.