IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 Bail Appl..No. 4501 of 2008() ----------------------------- CRIME NO.51/07, EXCISE RANGE, CHATHANNOOR PETITIONER --------------------------- MOHANAN, AGED 46, S/O.CHELLAPPAN, CHARUVILA VEEDU, PANIYIL CHERRY, CHIRAKKALA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.V.VENUGOPALAN NAIR RESPONDENTS: ------------- 1. THE EXCISE INSPECTOR, EXCISE RANGE, CHATHANNOOR, KOLLAM DISTRICT. 2. THE ASST.EXCISE COMMISSIONER, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29.7.2008, THE COURT ON 29/07/2008 PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.4501 of 2008 ----------------------------------------- Dated this the 29th July, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 8(1) and (2) of Abkari Act. According to the prosecution, the Excise Inspector got reliable information that sale of arrack is being carried on in the provision shop run by the petitioner and he inspected the shop on 2.10.2007 at about 12 noon. Petitioner's mother was sitting in the shop on a chair and underneath the chair, a can was found. On examination of the can, it was found to contain 8.750 litres of arrack. Therefore, a case was registered against the petitioner as well as his mother as the first and the second accused respectively. Petitioner's mother was not arrested from the spot, since no Police Woman Constable was available. 3. The petitioner surrendered before the Judicial Magistrate of First Class, Paravur on 19.6.2008 in connection with C.P.No.142/2007, as per a direction in the order dated 13.6.2008 in Crl.M.C.No.2225 of 2008 passed by this Court. At that time, a petition was filed by the respondent herein alleging that he is to be remanded in connection with this crime. Accordingly, though the petitioner was granted bail in the other case, i.e., C.P.No.142 of 2007, he was remanded to judicial custody in this case. BA.4501/08 2 4. Learned counsel for petitioner submitted that ever since 2001, the petitioner was being falsely implicated in cases involving offence under the Abkari Act, Sri.Sanjay, who is at present working as the Circle Inspector of Excise at Kollam was working as Excise Inspector of Chathannur Range in 2001. One day, he came to the house of the petitioner in 2001 on some mistaken impression that the petitioner was involved in an abkari offence. Though the inmates of the house explained his innocence, he was not prepared to listen. Petitioner was not present in the house at that time. Hence, he took away the voters slip, letter written by the financial institution etc. from the house and thereafter, the petitioner was falsely implicated stating that he was found in possession of contraband article under the Abkari Act which he abandoned and ran away. Two other accused were also implicated in the offence. 5. It was further alleged in that case that the voter's list was found out from the place of occurrence which dropped from the petitioner's pocket. Actually, the slip was procured by the Excise Inspector after trespassing into the residence of the petitioner. Aggrieved by the atrocities of the Excise Inspector, the petitioner filed a complaint before the Magistrate's Court. The case was sent for investigation but, sanction was required to prosecute the Excise Inspector and hence, an enquiry was conducted at the instance of the Government to consider whether sanction can be given or not, at the BA.4501/08 3 governmental level. To see that no sanction is granted, the Excise Inspector falsely implicated the petitioner in various offences by seeking help of the police officials also. Accordingly another false case was registered by the Sub Inspector in the year 2001. Various other crimes were also registered in the following years. But in no case, the petitioner was arrested from the spot, and in all the cases the allegation made is that the petitioner escaped from the scene and he could not be arrested from the spot. It is submitted that it is quite improbable that in no case the petitioner could be arrested by the excise officials or the police from the spot with the contraband article. According to learned counsel for petitioner, petitioner was not involved in any offence and that is the reason why he was not arrested from the spot. 6. However, no sanction was granted by the Government and hence the complaint against the Excise Inspector was referred and the petitioner could not proceed with the prosecution. Offended by the act of the petitioner in filing a complaint against the Excise Inspector, all other cases are falsely cooked up against the petitioner, it is submitted. Learned counsel for petitioner also submitted that the petitioner is a law abiding citizen, who is physically handicapped also. He is running a grocery shop and a vegetable shop and he is residing in the house situated adjacent of the shop with his family members, including his aged parents and an unmarried daughter, who BA.4501/08 4 is a Post Graduate in Chemistry. The petitioner is totally innocent of the allegations made and he has absolutely no connection with any contraband articles under the Abkari Act. The allegations made in this case that the article was seized from the shop of the petitioner is absolutely false, it is submitted. 7. According to learned counsel for petitioner, on the alleged date of occurrence, the petitioner was away in connection with purchase of vegetable, while the excise party seized some contraband article from about 1 to 1 ½ km away from a place called, Polichira, where people were engaged in illicit abkari business. Utilising the article seized from the said place, a false case is foisted against the petitioner. On knowing subsequently that a false case has been foisted against the petitioner and his mother alleging that contraband articles were seized from the shop of the petitioner on 2.10.2007, the petitioner's mother lodged a complaint before the Excise Commissioner, the Excise Minister and the Assistant Commissioner of Excise etc. on the very next day. 8. No action was taken in the complaint promptly and the petitioner was forced to move this court in W.P(C).No.37054 of 2007 and this Court issued a direction to the Assistant Commissioner, Kollam to take a decision on the representation filed by the petitioner's mother within a period of four weeks. Accordingly, an enquiry was conducted and to the knowledge of the petitioner, the BA.4501/08 5 witnesses who are stated to be the attesters to the mahazar did not implicate the petitioner in this offence. To the petitioner's knowledge, they narrated the truth and stated that no recovery was effected from the shop of the petitioner. One Sudarsaran, who is a mahazar witness, knew that article was seized from Polichira, which was used for falsely implicating the petitioner and the said person stated that the article was seized from Polichira and not from the shop of the petitioner, it is submitted. One Thankappan, who is another witness also stated true facts before the Assistant Commissioner of Excise that no seizure was effected from the shop, it is submitted. 9. learned counsel for petitioner also submitted that the petitioner believes that it was at the instance of the Excise Inspector is working as the Circle Inspector Excise, Kollam (under whose jurisdiction Chathannur Range lies) even the aged mother of the petitioner was falsely implicated in the present case. On the day of alleged occurrence, there was an attempt to take away petitioner's old father in the jeep but people of the locality intervened and prevented the same. The petitioner had undergone detention in several cases at the pre-trial stage in such falsely implicated cases but the petitioner was not even aware of pendency of many of the cases until reference was made to such cases by learned Public Prosecutor. But, whenever he has received information regarding pendency of cases, he has surrendered before the court concerned. It is also submitted that on BA.4501/08 6 the date of occurrence, the police came to the shop of the petitioner, while the shutter had been pulled down, as his the mother was giving food to the petitioner's father and petitioner had gone to purchase vegetables. The article which was seized from Polichira was brought to the shop of the petitioner by the Excise officials and photographs were taken. The petitioner's mother resisted this while she was abused. Then an attempt was made by the Excise Inspector to take away the motorcycle of his son. Thereafter, the petitioner's father was removed by force to the jeep. But, the people of the locality intervened and it was prevented. Stating all these details, a representation was given by petitioner's mother to the Excise Commissioner. As per the information of the petitioner, the innocence of the petitioner was revealed from the statement of witnesses, it is submitted. 10. This petition is strongly opposed. Learned Public Prosecutor submitted that petitioner is a habitual offender. It was submitted that it is quite unbelievable that the petitioner will be falsely implicated in a series of cases only, at the instance of an Excise Inspector, who was working in Chathannur Range in 2001. It was pointed out that cases were registered against the petitioner, even at the time when the Inspector was not available anywhere near the Chathannur Range. It is only recently that the said Inspector has taken charge as the Circle Inspector of Excise, Kollam. Crime was registered against the BA.4501/08 7 petitioner by the police also. An enquiry was conducted on the representation given by the petitioner's mother by Sri.Anil Kumar, the Circle Inspector, Kollam against whom there is no allegation. But, in the mean time, the petitioner filed a Writ Petition before this Court and a specific direction was issued by this Court to the Assistant Commissioner to conduct the enquiry and accordingly, the enquiry was conducted. In the enquiry, all the witnesses implicated the petitioner (except one Thankappan) stated that the petitioner is habitually involved in abkari offences. It was also submitted that in one of the cases the petitioner ran away from the scene to escape from the clutches of the Excise officials, when he fell down and sustained a fracture and this fact also is revealed in the enquiry. The complaint made by petitioner's mother was found to be baseless and the enquiry was concluded. The article was seized from the shop run by the petitioner and there is absolutely no reason to grant bail to the petitioner, who is a habitual offender, it is submitted. 11. After hearing both sides, I have called for files relating to the enquiry which was conducted, pursuant to the direction issued by this Court as per Annexure-3 order in WP(C).37054 of 2007. I have also gone through the case diary. From the materials available, it is clear that the petitioner has, as early as in 2001, when the first attempt of false implication was allegedly made by the Excise Inspector had filed a complaint against him. It is not a case where he BA.4501/08 8 is raising allegation against an officer at a belated stage. He could not pursue only because sanction was not given. It is only natural that petitioner would have been aware the consequences if he offends an Excise official. Still, he had done so, since according to petitioner, the complaint is true. But, it did not fetch any result. Instead, cases were being registered against him one after the other, which he failed to prevent. 12. Even though an allegation is made during the enquiry conducted against the petitioner that the petitioner fell down and sustained a fracture while running away on seeing the officials, there is no case for the prosecution that atleast in that case he was arrested from the spot. It is also to be noted that in this case itself, though the second accused was allegedly present at the scene, she was not arrested. According to petitioner, the people of the locality had intervened since there was an attempt to falsely book innocent persons. Admittedly, the petitioner is running a provision shop and a vegetable shop and he has a permanent address. But, he was not arrested either by the Excise officials or by the police. His mother was also not arrested. Reasons are best known to them. 13. On perusal of the files relating to the enquiry conducted by the Assistant Commissioner it is clear that no attempt was made to find out whether the allegations made against the Excise Inspector was true or not. Though the allegation is that nothing was seized BA.4501/08 9 from the shop of the petitioner on the date on which the Excise officials have allegedly seized the article, the Assistant Commissioner, who conducted the enquiry does not appear to have put any question to any of the witnesses whether such an incident had happened or not. It appears that an enquiry is made to make an eye wash to bring out certain materials to make it appear that petitioner is a habitual offender. Vague allegations mainly, in the form of hearsay are brought out from the statements of the witnesses. 14. The mahazar witnesses, were examined during enquiry but not a single question is put to them whether on the date of offence an incident of the nature as alleged by the petitioner had taken place or not. Though the submissions made by learned Public Prosecutor would appear to be impressive on a first blush, (that it is unbelievable that the petitioner would be falsely implicated by different officials in the Excise department as well as the police), the manner in which the enquiry was conducted by a high ranking official in the Excise department itself would indicate that the petitioner was not getting the justice which he deserved even from the higher officials in the Excise department. 15. A direction was issued by this Court to conduct enquiry by the Assistant Commissioner, since this Court reposed confidence on the higher official and expected that a fair and proper enquiry will be conducted to find out truth in the allegations made by the petitioner's BA.4501/08 10 mother in the representation given to the Excise Commissioner etc. But the statement recorded from the witnesses will reveal that not even an attempt was made to find out whether the allegations made in the representation against the Excise officials are true or not. Some general statements were elicited from the mouth of the witnesses to indicate that the petitioner is a habitual offender, that too, on hearsay. But, it is relevant to note that even those witnesses have no case that he was conducting sale of liquor from his shop. It is seen from their statement that the sale was conducted elsewhere, not even in the locality where the petitioner resides or his shop is situated. One Vijayakumar, S/o.Thankappan is an attester to the mahazar who could not confirm whether any sale of arrack was conducted in the shop of the petitioner. But, according to witnesses, the sale was conducted some where else and that too, through some other persons who are engaged for that purpose and not personally by the petitioner. 16. Sri.Thankappan, S/o.Kunhiraman, who is also a witness in this case, specifically stated during enquiry that he had not signed in any paper at the instance of the Excise officials and that there was no sale of arrack in the shop or premises. Sri.Sudarsanan is another witness in this case and he also stated that a paper was caused to be signed by him by the Excise officials and he did not know whether his father or mother had any arrack business. He also stated that the petitioner is residing in the house adjacent to the shops where he was BA.4501/08 11 conducting vegetable and grocery business. His statement also will not reveal that any article was seized from the shop of the petitioner on the date of offence. No question is put to any of the witnesses by the Assistant Excise Commissioner to ascertain whether the allegation made by the petitioner's mother in the representation are true or not. 17. It is submitted by learned counsel for petitioner that the petitioner applied for copies of the statement given by various witnesses in the enquiry under the Right to Information Act. But, such request was denied. It is surprising that the Assistant Excise Inspector, after referring to the statement given by one Thankappan, who specifically stated that petitioner had no business of sellilng arrack either in the shop run by him or in Polichira, that his statement is not true and he was deliberately helping the petitioner. It is unfortunate that even without ascertaining from any other witness whether allegations made against the Excise officials are correct or not, the statement of a witness who appears to have given statement in favour of the petitioner has been found to be untrue. 18. This indicates a tendency of the enquiry officer to disbelieve a witness who gave statement in favour of the petitioner without any basis. Though the Assistant Commissioner claimed himself to be taking a non-prejudical and impartial decision in the enquiry, as seen from the order in the enquiry, it was unfortunate that a finding was entered into by the Assistant Commissioner of Excise without any BA.4501/08 12 basis that the statement given in favour of the petitioner's mother is not true. It is also pertinent to note that none of the witnesses stated specifically that the petitioner was conducting any sale of arrak from his shops. But even then, the statement given by Sri.Thankappan was found to be not true by the Assistant Excise Commissioner, without any materials. 19. Learned Public Prosecutor submitted that as per order dated 17.3.2003 in Crl.M.C.No.2119 of 2007 that in another case, the petitioner was arrested from the scene itself. It is also pointed out that as per order dated 3.9.2004 in B.A.No.4995 of 2004, the Excise officials seized 8 litres of arrack and arrested the petitioner. But, it is not clear to me from either of the orders whether the petitioner was arrested from the spot itself or not. In the same order, it was observed that medical records produced by the petitioner would show that he had met with an accident and he was in bed rest at the time of his arrest and that his left leg was fractured. The petitioner had contended that he was falsely implicated in the crime by arresting him, while he was taking rest on medical advice for four months, after sustaining a fracture in accident. It is seen from medical record that he was discharged on 4.7.2004, but he ws arrested on 23.8.2004. it appears that the petitioner's case was that it is improbable that a person who must be on plaster cast on his discharge from hospital on 4.7.2004 would commit offence on the very next month, while he was BA.4501/08 13 on rest on medical advice. 20. Taking all the above facts into consideration, I find that notwithstanding the objection raised, petitioner must be released on bail. It must not be too late to do justice to him, which he appears to deserve, on the facts and circumstances of this case. Hence, the following order is passed: i) Petitioner shall be released on bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned. ii) It is also directed that the file relating to the Enquiry referred to in this judgment shall not be destroyed until the trial of this case is over. Petition is allowed. K.HEMA, JUDGE vgs.