IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Bail Appl..No. 6543 of 2008() ----------------------------- CRIME NO.96/2008 OF KARUNAGAPPALLY EXCISE RANGE PETITIONER/ACCUSED -------------------------------------- SUNIL KUMAR, AGED 38 YEARS, S/O.KESAVAN, KOCHUCHAKKOD, THEKKUMURI MEKKU, THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENT(S): STATE -------------------- 1. THE EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, KARUNAGAPPALLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6543 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 8(2) of the Abkari Act. According to prosecution, 70 litres of arrack in two cans were seized which were kept near a stream. On enquiry, it is revealed that the said articles belonged to petitioner. Hence, a case was registered against petitioner. 3. Learned counsel for petitioner submitted that petitioner has been falsely implicated in this case at the instance of one Vikraman Nair. The official who has prepared the mahazar is Sri Vasudeva Kurup who is a colleague of Sri. Vikraman Nair. He was instigated by Vikraman Nair to register the case, when abandoned articles were seized by him. Sri Gopalakrishnan Pillai who is related to Sri. Vikraman Nair is shown as a witness in the mahazar and he is a planted witness. It is also submitted that petitioner is not residing near the place from where the article was seized. 4. It is relevant to note that in the mahazar, petitioner was shown to have been residing in a rented house “Chiramughathu House”. Petitioner is not even aware of such a BA 6543/2008 2 house and he was never stayed in such house, it is submitted. This may also have been deliberately done with ulterior motive, which is yet to be unearthed. It is also pointed out that though three cases were registered against petitioner, none of the case petitioner was arrested from the spot. 5. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. Petitioner is a tree climber. Sri Vikraman Nair who is Preventive Officer is the detecting officer. He and petitioner are on inimical terms with each other since January, 2008. According to petitioner, in January, 2008, he was called by Sri Vikraman Nair and he wanted some timber for the purpose of house construction. Accordingly, he took him to the house of one Saji along with two carpenters and it was agreed that two anjili trees and two mahagani trees would be sold for an amount of Rs.38,500/-. An advance of Rs.1,500/- was paid to said Saji. 6. Thereafter, Sri Vikraman Nair came to the house of petitioner and told him that the logs were not ripe enough for the purpose of construction of house, as stated by carpenters, and hence, he would pay only Rs.25,000/-. Petitioner explained to him that it is difficult to change his version and there was a quarrel BA 6543/2008 3 between them. Sri Vikraman Nair wanted Rs.1,500/- back from petitioner. When he told him that it cannot be paid back, as it was already given to Saji, Sri Vikraman Nair threatened petitioner saying that he would make him spend Rs.50,000/- in the place of Rs.1,500/-. He also threatened that he would never get out of the jail. 7. On 24-9-2008 when he was standing in a road junction he told him that he would be “lifted” within two days and that he would be made an accused in an abkari case. Petitioner, therefore, approached a former member of the Panchayat and through him, and an advocate was approached. On enquiry, it was known that a crime was already registered against him falsely. Another crime was also registered as Crime No.96/2008 at the instance of said Vikraman Nair, through his friend and colleague, Sri Vasudeva Kurup. Crime No.140/2008 was also registered by Excise Circle Inspector. All these were done at the instance of said Vikraman Nair, it is submitted. 8. It is also submitted that if petitioner committed any offence as alleged, there is no difficulty for the officials to arrest him. But petitioner was deliberately not arrested and it was with intention to make it appear that this is genuine case and that he BA 6543/2008 4 was not available for arrest. He has been working all these months in the locality and no Excise official approached anybody, enquiring about him. 9. Learned counsel for petitioner also submitted that said Vikraman Nair is in the habit of foisting false cases against innocent persons and one Prakash, S/o. Raghavan was falsely implicated in an abkari case because of his enmity towards him. He had to suffer 76 days of detention in jail, during crime stage, and he made a complaint to the higher officials, in respect of the heinous activities of Sri. Vikraman Nair. The said case was registered not by Sri. Vikraman Nair himself, but it was falsely fabricated through Sri Vasudeva Kurup who is his friend and colleague, who is the same person who filed a case against the aforesaid Prakash Though crime was actually registered by another official, the allegations were made against Sri Vikraman Nair. 10. An enquiry was conducted against Sri. Vikraman Nair and Annexure-A2 is the report. As per the report of the Excise Vigilance Officer, it was found that a false case was registered against Prakash. It was also observed that only because said Prakas refused to give puppies to said Vikraman Nair, at this BA 6543/2008 5 request, he was falsely implicated in an abkari offence. It is also reported that he was engaged in illegal activities as an official in his native place in Karunagappally and nearby places. It was also recommended that said Vikraman Nair should be immediately transferred from the place and he shall not be posted in any where in Karunagappally, Kunnathur, etc. It was also recommended that a further investigation may be ordered to be conducted in the other cases. Accordingly, said Vikraman Nair was transferred form Karunagappally Range to Chathannur. He was, thereafter, suspended from service. (Learned Public Prosecutor pointed out that as per order of this Court, he was reinstated, pending enquiry and later, he was posted in Waynad). 11. Learned counsel for petitioner also produced two affidavits, one filed by Saji and another by a neighbour, stating that petitioner is not dealing in contraband articles under the Abkari Act. Sri Saji has filed an affidavit supporting the contentions raised by petitioner in respect of the alleged transaction, which is the root cause for the alleged enmity of Sri. Vikraman Nair against petitioner. 12. Learned counsel for petitioner submitted that within a span of five months, three cases were registered against BA 6543/2008 6 petitioner falsely. One by Sri. Vikraman Nair himself and two other cases were registered as instigated by Sri Vikraman Nair. It is also pointed out that till the case was registered by Sri Vikraman Nair, he was not involved in any case. Now an attempt is made to make it appear that petitioner is a habitual offender. Petitioner is absolutely innocent of the allegations made and hence, he may be granted anticipatory bail, it is submitted. If anticipatory bail is refused, petitioner will meet the same fate as Sri Prakasan (at whose instance an enquiry was conducted and said Vikraman Nair was transferred) and be in jail for a long time. 13. Learned Public Prosecutor submitted that there are witnesses and all of them supported the officials and hence, there is no reason to grant anticipatory bail. It is not this case alone, but two other cases which were registered by two different officers against petitioner on 16-6-2008 and 29-8-2008. It will be difficult to infer that other officers have acted to the tune of Sri Vikraman Nair and hence, it may not be proper to grant anticipatory bail to petitioner in an offence of this nature, it is submitted. 14. On hearing both sides and on going through the documents produced and records, I find that petitioner has a strong arguable case to advance. His alleged innocence and false BA 6543/2008 7 implication can be established only at the time of evidence. If petitioner is refused anticipatory bail, it is likely that it will result in gross injustice and he will suffer irreparable injury and loss. Therefore, in the peculiar facts and circumstances of this case, I am constrained to pass an order of anticipatory bail. 15. In the result, the following order is passed:- (1) Petitioner shall surrender before the Magistrate court concerned and he shall be released on bail, on his executing a bond for Rs. 25,000/- with two solvent sureties each, for the like amount, to the satisfaction of the learned Magistrate, on the following conditions:- i) Petitioner shall make himself available for interrogation by the Investigating Officer as and when directed. ii) Petitioner shall not commit any offence while on bail. This petition is allowed. K.HEMA, JUDGE. mn.