IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Bail Appl..No. 170 of 2009(E) ----------------------------------- CRIME NO.46/2008 OF PATHANMTHITTA EXCISE RANGE PETITIONER/ACCUSED : ---------------------------- AJAYAN, AGED 28 YEARS S/O.KUNJUMON, BLOCK NO.86 EZHIKKADU HARIJAN COLONY, KURICHMUTTAM MURI KIDAGANOOR VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.AJITH MURALI RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------- B.A. No.170 OF 2009 ---------------------------- Dated this the 20th day of January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 8(2) and 33(2) of Abkari Act. According to prosecution, first accused, who is the father of petitioner, was found engaged in sale of arrack and 1.5 litres of arrack was seized from his possession. On seeing this, petitioner and others rescued the father from the excise officials and hence, petitioner and his father could not be arrested from the spot. 3. Learned counsel for petitioner submitted that substantive offence is under Section 8(2), for which, petitioner is not liable even as per the admitted case of prosecution. Since offence under Section 8(2) of Abkari Act is included, it is likely that he will be arrested and remanded. Therefore, he may be granted anticipatory bail, it is submitted. 4. Learned Public Prosecutor submitted that though offence under Section 33(2) of Abkari Act is shown in the B.A.No.170 of 2009 2 documents, it is only enabling provision by which a person, who attempts to rescue the accused from the clutches of the officials can be arrested without a warrant. It is made clear that petitioner is not involved in offence under Section 8(2) of Abkari Act or any other offence under the Abkari Act. These submissions are recorded. It is also submitted that a crime is registered against him by the police against the act committed by petitioner and a separate proceedings are initiated against him. On hearing both sides, I find that on the facts and circumstances of this case, it is not a fit case to grant anticipatory bail. However, it is made clear that as per the submissions made by learned Public Prosecutor, petitioner cannot be dealt with under any of the provision under the Abkari Act. If petitioner surrenders before the excise officials or the court, he shall not be dealt with as an offender/accused for having committed any offence under Abkari Act. However, it is made clear that there will be no bar for excise officials in invoking offence under Section 33(2) of Abkari Act. B.A.No.170 of 2009 3 Petitioner is directed to surrender before the Investigating Officer or before the Magistrate court concerned without any delay and if any bail application is filed, it shall be disposed of in accordance with law on merit, in the light of the observations made in this order. With this observation, this petition is disposed of. K.HEMA, JUDGE pac