IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 Bail Appl..No. 1705 of 2008() ----------------------------- C.R.NO.8/08 OF PATHANAMTHITTA EXCISE RANGE. PETITIONER/2ND ACCUSED --------------------------------------- SANTHOSH, OTTAPLAMOOTTIL HOUSE, NELLIKKALA, ELANTHOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.SETHUNATH RESPONDENTS: COMPLAINANT/STATE ------------------------------ 1. THE EXCISE INSPECTOR, CHITTAR RANGE, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1705 of 2008 ------------------------------------------------- Dated this the 18th day of March, 2008 ORDER Application for anticipatory bail. The petitioner is the 2nd accused. Altogether, there are 2 accused persons. They face allegations under the Kerala Abkari Act. On 6/2/08, five litres of spirit (diluted spirit) was allegedly seized from the possession of the 1st accused. It is alleged that he had kept the same in his possession as supplied by the petitioner herein. The 1st accused was arrested on 6/2/08. The petitioner has not been arrested so far. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. The allegation that A1 had furnished the name of the petitioner is incorrect. Even if he has so furnished his name, the allegation is false. In any B.A. No. 1705 of 2008 -: 2 :- view of the matter, the petitioner may be granted anticipatory bail and may be saved of the trauma of undeserved arrest and detention. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the available inputs clearly point to the complicity of the petitioner. At the scene of the crime itself the complicity of the petitioner has been ascertained and recorded in the seizure mahazar. His name figures in the occurrence report also. At the moment and with the available materials, there is no reason at all to doubt the complicity of the petitioner. There are no circumstances justifying or warranting the invocation of the discretion under Sec.438 of the Cr.P.C. The petitioner may be directed to surrender before the learned Magistrate and seek regular bail, submits the learned Public Prosecutor. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I agree with the learned Public Prosecutor that there are no circumstances justifying or warranting the invocation of the discretion under Sec.438 of the Cr.P.C. and that this is a fit case where the petitioner must co-operate with the Investigator and appear B.A. No. 1705 of 2008 -: 3 :- before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary and normal course. 5. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge