IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Bail Appl..No. 7636 of 2009() ----------------------------- C.R. NO.62/2006 OF PATHANAPURAM EXCISE RANGE, KOLLAM DISTRICT .................... PETITIONER/ACCUSED NO.2 ------------------------------------------- VINOD, AGED 29 YEARS, S/O. VIJAYAN, PUNNOKKIL VEEDU, OORAKAM DESOM, OORAKAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, PATHANAPURAM, KOLLAM DISTRICT, NORTH PARUR POLICE STATION, ERNAKULAM DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7636 of 2009 --------------------------------------------- Dated this the 21st day of December, 2009 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.2 in C.R.No.62 of 2006 of Pathanapuram Excise Range, Kollam District. 2. The offence alleged against the petitioner is under Section 55(a) & (i) of the Abkari Act. 3. The prosecution case is that on 21.7.2006, the petitioner and the other accused transported a quantity of 3640 litres of spirit. The first accused was arrested on the spot. The petitioner could not be arrested as he ran away. The petitioner was arrested in another case and his formal arrest was recorded on 6.10.2009. 4. The learned counsel for the petitioner submitted that the investigating officer has not filed the final report before the expiry of sixty days and therefore, the petitioner is entitled to default bail under Section 167(2) of the Code of Criminal Procedure. BA No.7636/2009 2 5. It is pointed out by the learned counsel for the petitioner that the petitioner moved an application under Section 167(2) of the Code of Criminal Procedure before the lower court. But, it was dismissed and bail was refused on the ground that the case comes under Section 167(2)(a)(i) and not under Section 167 (2)(a)(ii). It is submitted that the decision of the trial court is quite contrary to the decision in Sreerajan vs. State of Kerala (2001(1) KLT 827). It was held in Sreerajan vs. State of Kerala (2001(1) KLT 827) thus: “To attract the proviso (a)(i) of Section 167 (2), the offence must be punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. But in the case of an offence punishable with imprisonment which may extend up to 10 years, the court is competent to pass a sentence of imprisonment less than 10 years. Therefore, an offence punishable with imprisonment which may extend up to 10 years is covered by the proviso (a)(ii) to Section 167(2) and not covered by proviso (a)(i). In all cases where the offences are punishable with imprisonment which may extend up to 10 years, the legislature does not expect the imposition of sentence of imprisonment not less than 10 years. In a case covered by proviso to (a) (i) of Section 167(2) the minimum punishment is imprisonment for 10 years where as in the case of an offence punishable with imprisonment which may extend up to 10 years the maximum punishment is imprisonment for 10 years. Therefore, the two cases cannot be included in the same category. In this case, the petitioner is alleged to have committed an offence punishable with imprisonment for a term which may extend to BA No.7636/2009 3 10 years and with fine which shall not be less than Rs.1 lakh. As already noticed, the petitioner is in custody since 23.12.2000. Therefore, he has to be released on bail if he is prepared to and does furnish bail in view of the proviso (a)(ii) to Section 167 of the Crl.P.C.” The view taken by the court below is against the dictum laid down in Sreerajan vs. State of Kerala (2001(1) KLT 827). 6. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the fact that no charge is laid within 60 days, I am of the view that bail can be granted to the petitioner. The petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class-I, Punalur, subject to the following conditions: a) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on every Monday and Thursday for a period of two months and thereafter, on every Monday, till the final report is filed or until further orders; b) The petitioner shall appear before the investigating officer for interrogation as and when required; c) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; BA No.7636/2009 4 d) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T.SANKARAN, JUDGE csl