IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Bail Appl..No. 5818 of 2008() ----------------------------- CRIME NO.58/2006 OF THIRUVANANTHAPURAM EXCISE RANGE PETITIONER: ACCUSED --------------------------- P.J. VENUGOPAL, AGED 46 YEARS, S/O.K. PARAMESWARAN NAIR, G.G.S. BHAVAN, T.C 8/338, ALAPPURAM ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT(S): COMPLAIANANT --------------------------- STATE OF KERALA, (REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, THIRUVANANTHAPURAM IN CRIME NO. 58/2006) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.5818 of 2008 --------------------------------------------- Dated this the 13th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 55(a) of Abkari Act. According to prosecution, 295 bottles containing total quantity of 132.05 litres of ginger tincture were found kept in a trolley in a railway station. It was seized by the Commercial Tax Department and the sample was sent for analysis. As per the label declaration, the article contained 85% of alcohol and hence, Commercial Tax Department handed over the articles to the Excise Department and a crime was registered under Section 55(a) of Abkari Act. Petitioner is the person to whom the articles were sent. 3. Learned counsel for petitioner submitted that petitioner is having a license, Annexure A1, by which he is entitled to keep in possession spirituous substances. He has wholesale license in connection with the business of spirituous substances. On knowing that the articles were seized by the Commercial Tax Department, he approached the authorities and produced all the BA No.5818/2008 2 documents. He also satisfied them that he had license for the same. But, the case was handed over to the Excise Officials. It is also submitted that “ginger tincture” is a wildly used veterinary medicine and petitioner has license to keep such medicine and conduct sale of the same through his establishment. If at all any offence is committed, it will only be violation of condition of license. But, he is not answerable for offence under Section 55(a) of Abkari Act. Therefore, he requests for grant of anticipatory bail. 4. This petition is opposed. Learned public prosecutor submitted that eight cartons of the alleged medicine were found on 12.11.2006, at 2 p.m., on the railway station in a trolley and those were seized and even as per the label declaration, it contained 85% of alcohol. As per the definition, spirituous substances can have only 12% of alcohol. An article which contains more than 12% of alcohol can only be treated as liquor falling definition under the Abkari Act. 5. It is also submitted that this is not a case where there is only violation of license conditions, but, petitioner did not have a license to purchase the articles from “Swasthik Pharmaceuticals” which had sent the articles to Jyothi Pharma, which is run by the petitioner. A perusal of the license produced by learned counsel BA No.5818/2008 3 for petitioner shows that as per the license, he can purchase the articles only from certain establishments to those do not include “Swasthik Pharma”. Therefore, it is a clear case where there is no license for purchase of the articles. It is also pointed out that the documents which are produced as Annexures C and D relate to the business run by petitioner's wife and not that of the petitioner. 6. On hearing both sides, considering the nature of allegations made, I find that it is not a fit case to grant anticipatory bail. The arguments advanced that there is only a mere violation of conditions, cannot be accepted at this stage of investigation, without any evidence. If the petitioner can convince the Excise Officials about his innocence and his entitlement as per law by virtue of license, it is needless to say that the proceedings against him will be dropped by the Excise Officials themselves. Therefore, I do not find any reason to grant anticipatory bail. Petitioner is directed to surrender before the Magistrate concerned or the Investigating Officer and co-operate with investigation. With this direction, petition is dismissed. K.HEMA, JUDGE csl