IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 Bail Appl..No. 3587 of 2008() ----------------------------- CRMP.1185/2008 of J.M.F.C.,RANNI CRIME NO.65/08 OF PERUNAD POLICE STATION PETITIONER/2ND ACCUSED --------------------------------------- JISHANTH, S/O.GOPALAKRISHNAN, MODIMEPURATH, MADAMON PATHANAMTHITTA DIST., BY ADV. SRI.V.SETHUNATH RESPONDENTS: RESPONDENTS/COMPLAINANT/STATE ------------------------------------------ 1. THE SUB INSPECTOR, PERUNAD POLICE SRTATION. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 3587 of 2008 ----------------------------------------- Dated this the 10th day of June, 2008 O R D E R This petition is for bail. 2. A charge sheet was laid against the petitioner as the second accused, alleging offence under Section 8(1) and (2) of the Abkari Act. According to prosecution, petitioner was found transporting huge quantity of illicit arrack. He was travelling in an auto rickshaw, driven by the first accused. There was also another co-passenger, who is the third accused. 3. According to learned counsel for petitioner, the petitioner is totally innocent of the allegations made. He is falsely implicated in the offence at the instance of a political leader by name, Saji. As per the instruction, the first accused, who is the driver of the vehicle, was arrested from the spot and the name of 'Saji' was also included as accused in the First Information Report. But subsequently, under the influence of Sri.Saji, attempts are made to delete the name of first accused and the name of Saji is already struck off and the name of second and third accused are included. It is also submitted that the petitioner's father was taken into custody BA.3587/08 2 by the police officials and hence the petitioner was forced to surrender before the court on 3.5.2008 and he was thus remanded to custody. 4. In support of the contentions raised, learned counsel for petitioner pointed out certain facts. In the FIR, in column No. 7, where the names of accused are shown, there is erasure and overwriting. Some writing was erased and the names, “Nishanth” and “Manu” are seen subsequently added (the actual name of the petitioner is Jishanth). It is also pointed out that in column No.9 of the FIR, the quantity was shown as 100 litres, whereas in column No.12, it is shown as 80 litres. It also appears that in the FIR at another place where the synopsis is written, there is an overwriting. Instead of 25, it is seen overwritten as 20 which refers to the capacity of the can seized. 5. Learned counsel for petitioner also submitted that as per the mahazar, (based on which the FIR was registered), there is no allegation that the officials had seen the petitioner running away. A close reading of the mahazar shows that only the driver of the auto rickshaw was “found” running away and there is nothing to show that the presence of any other person in the auto rickshaw was noted by the officials at the time of occurrence. But later, towards BA.3587/08 3 the bottom of the mahazar, it is mentioned that the persons who “walked away” from the auto rickshaw are “Nishanth” and “Manu”. It is stated in the mahazar that on enquiry made, it is revealed that the persons who “walked away” are Nishanth and Manu. 6. In the light of the submissions made, I have gone through the case diary carefully. The overwriting, the correction and erasures in the name in column No.7 of FIR is quite evident. The petitioner's name appears to be subsequently included. The overwriting made in respect of 20 litres is also clear with naked eye. The officials had not seen anybody other than the driver of the auto rickshaw at the time of occurrence, but it appears that towards the end of the mahazar it is recorded that on enquiry it is revealed that the persons who walked away from the auto rickshaw are “Nishanth” and “Manu". If as a matter of fact had there been this entry in the mahazar at the very outset, there is no reason why there should be an overwriting correction, erasure and an inclusion in column No.7 of the FIR. The the mahazar is the foundation for registration of the crime and the details therein have to tally with the FIR. Further, in column No.9, the quantity of liquor is shown as 100 litres, but in the mahazar it is only 80 litres. These discrepancies may lead to a doubt whether mahazar was BA.3587/08 4 subsquently concocted, with a view to include the name of petitioner in the offence and arguments in these lines cannot be brushed aside lightly. 7. On going through the case diary, there are other prima facie materials also to substantiate the contentions raised regarding the subsequent implication of the petitioner. It is also pertinent to note that even as per the mahazar, though the driver ran away, the other accused were “walking” towards the northern side. It is not understood why at least those persons could not be arrested. Taking all these facts into consideration, I find that this is a fit case to grant bail, despite the objection raised. 8. Hence, petitioner is granted 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. This petition is allowed. K.HEMA, JUDGE vgs.