IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 Bail Appl..No. 8120 of 2007() ----------------------------- CMP.10429/2007 of J.M.F.C.-I,KOTTARAKKARA CRIME NO.914/07 OF KOTTARAKARA POLICE STATION. .................... PETITIONER/ACCUSED NO.7: ----------------------------------------- RAJESH, S/O.GOPINATHAN, REKHALAYAM, MANNADI P.O., KADAMPANAD, ADOOR. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 8120 OF 2007 ------------------------------------------------- Dated this the 9th day of January, 2008 ORDER Application for regular bail. The petitioner is the 7th accused. Altogether, there are 8 accused persons. The crux of the allegations against the petitioner is that he, along with the co-accused, was involved in the illicit activity of transporting 2385 litres of spirit in a lorry which had secret chambers in it for the purpose of transporting such illicit liquor. 2. Accused 1 and 2 - allegedly the driver and cleaner of the said lorry, were intercepted on 1/12/07 under suspicious circumstances when it was found that the said lorry was seen parked at a certain place in Kottarakkara. Accused 1 and 2 were arrested and interrogated. An F.I.R. was registered showing the 4 persons as accused. Accused 1 and 2 are the B.A. No. 8120 OF 2007 -: 2 :- driver and the cleaner. Accused No.3 is the one who engaged accused 1 and 2. Accused No.4 is the person who was giving instructions from time to time to the driver over telephone about the movements of the vehicle. 3. In the course of investigation, the culpable involvement of accused Nos.5 to 8 in the transportation of the consignment of contraband article was ascertained. The petitioner was arrested on 8/12/07. Investigation is in progress. The petitioner continues in custody from that date. 4. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even going by the allegations of the police, the alleged role of the petitioner is only that he had given instructions about the movement of the illicit consignment. He was not actually involved in the transportation. The learned counsel for the petitioner submits that in the absence of a specific provision like Secs.34, 149 or 120B IPC. In the Abkari Act, the petitioner cannot be held to culpably responsible under Sec.55(a) of the Kerala Abkari Act. The learned counsel for the B.A. No. 8120 OF 2007 -: 3 :- petitioner further submits that the meager material now available is only in form of statements of the co-accused and, in these circumstances, it would harsh to deny the petitioner his liberty on the basis of such statements which would be eventually inadmissible in evidence. 5. The precise allegation against the petitioner is that he was responsible for the transportation of the illicit consignment and had instructed the co-accused regarding the movement and disposal of the illicit consignment. 6. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that it would be myopic to assume that the transportation is done only by the person who drives the vehicle and not by various persons who are instrumental in the transportation. Any one who causes the consignment to move either by his physical participation or by his involvement by way of instruction regarding the movement of the illicit consignment must be held to fall within the broad sweep of Sec.55(a) of the Abkari Act. The learned Prosecutor B.A. No. 8120 OF 2007 -: 4 :- further submits that the principles regarding vicarious liability in the IPC are in the nature of general principles of criminal law applicable in all prosecutions and even in the absence of a specific identical stipulations in the Special Statute concerned general principles of criminal law must apply while ascertaining culpability. It is not necessary for me in this Bail Application to go into that larger question in detail. Suffice it to say that I am in ready agreement with the learned Public Prosecutor that not only the driver but also those who instruct the driver about the movement of the vehicle carrying the illicit consignment must be held to be responsible for the transportation under Sec.55(a) of the Abkari Act. 7. The learned Public Prosecutor opposes the application and in the wake of opposition by the learned Public Prosecutor, bail can be granted to the petitioner only if this Court is in a position to entertain both the satisfactions contemplated in Sec.41A of the Kerala Abkari Act. At the moment and with the available inputs, I am unable to agree that either of those two B.A. No. 8120 OF 2007 -: 5 :- satisfactions can be entertained by this Court. It will be imprudent at this stage while considering the application for grant of bail to exclude the materials which have been collected from the statements of the co-accused recorded under Sec.161 of the Cr.P.C. I am satisfied, in these circumstances, that the petitioner is not entitled for grant of regular bail at this stage. 8. This bail application is accordingly dismissed. But I may hasten to observe that the petitioner shall be at liberty to move this Court for bail again at a later stage of the investigation – not, at any rate, prior to 23/1/08. The Investigator shall, in the meantime, make every endeavour to complete the investigation. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 8120 OF 2007 -: 6 :-