IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 Bail Appl..No. 1396 of 2008() ----------------------------- CRIME NO.673/2007 OF PADALAM POLICE STATION :PETITIONER/ACCUSED NO.2 ----------------------------- SULAN SUKUMARAN, AGED 45 YEARS ULHASNAGAR N.P.WARD NO.28, CAMP 4 ULHASNAGAR, MUMBAI. BY ADV. SRI.AJITH MURALI RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.1396 of 2008 ---------------------------------------- Dated this the 7th day of March 2008 O R D E R Application for anticipatory bail. The petitioner is the second accused. He faces allegations in a crime registered under the Kerala Abkari Act. The crux of the allegations against the petitioner is that contraband liquor - 10 litres of arrack was allegedly seized from the premises occupied by the first accused, who is the wife of the petitioner herein. 2. The petitioner has a case that he is employed and residing permanently in Mumbai and at the relevant time - the detection was made on 12/11/2007 - he, consequent to estrangement with his wife, was residing at Mumbai and worked there. The petitioner has no responsibility whatsoever for whatever activities his estranged wife is carrying on in her present residence which is not frequented by the petitioner at all. In these circumstances, it is prayed that anticipatory bail may be granted to the petitioner. 3. The learned Public Prosecutor submits that the investigation is already complete. Final report has already been filed arraying the petitioner as well as his wife as accused 2 and 1 respectively. C.P.No.232/07 has been registered before the B.A.No.1396/08 2 learned Magistrate. The petitioner may be directed to surrender before the learned Magistrate and seek regular bail, submits the learned Public Prosecutor. 2. The learned counsel for the petitioner relying on the decision in Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] contends that notwithstanding the fact that the apprehending arrest was in execution of the process issued by the court, the petitioner is entitled in the peculiar facts and circumstances of this case for grant of anticipatory bail. The learned counsel for the petitioner submits that the prosecution does not even have an allegation that the petitioner was present on the date of the incident or any time in the recent past at the house of his wife as to justify the allegation that the wife was keeping possession of the articles jointly with him and with the conscious culpable mental state of the petitioner. 3. The learned Public Prosecutor was requested to explain to this court the specific circumstances, if any, which can indicate that the petitioner had constructive joint possession over the articles kept in the house and also to submit whether there is anything to show that on the relevant day or any anterior recent past the petitioner was present at the place where the recovery was made. B.A.No.1396/08 3 4. The learned Public Prosecutor fairly submits that except the allegation that the house is occupied by the petitioner's wife and certain statements have been made by her implicating the petitioner, there is no other evidence whatsoever to drive home the guilt of the petitioner. 5. Having rendered my anxious consideration to all the relevant inputs, I am persuaded to agree that directions under Section 438 Cr.P.C can be issued in favour of the petitioner. Appropriate directions for a proper completion of the investigation can be issued in the interests of a proper investigation. 6. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner. i) Petitioner shall on or before 17/3/2008 appear before the learned Magistrate having jurisdiction. The learned Magistrate shall release the petitioner on bail on condition that: (a) He executes a bond for Rs.25,000/-(Rupees twenty five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (b) He shall make himself available for interrogation before the investigating officer as and when directed by the B.A.No.1396/08 4 investigating officer in writing to do so. (iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law, as if these directions were not issued at all. (iv) If he were arrested prior to 17/03/2008, he shall be released from custody on his executing a bond for Rs.25,000/- (Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 17/03/2008. (R.BASANT, JUDGE) jsr B.A.No.1396/08 5 B.A.No.1396/08 6 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007