IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Bail Appl..No. 7983 of 2007() ----------------------------- CR NO. 78/07 OF KASARAGOD EXCISE RANGE PETITIONER/ACCUSED ----------------------------------- ABDUL RAHIMAN, S/O.MUHAMMEDKUTTY, KOLATHINGAL HOUSE, SHIRIBAGILU VILLAGE, KASARAGOD. BY ADV. SRI.SOJAN MICHEAL RESPONDENTS: COMPLAINANT ------------------------ 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 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 7983 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of January, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations under the Kerala Abkari Act. The crux of the allegations against the petitioner is that he was found to keep in his possession 380 packet of Karnataka arrack, each measuring 100 ml., in a premises which was allegedly taken on lease by him. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. At the time when the detection was made, the petitioner has not been shown as an accused at all. According to the petitioner he has been brought on the array of accused without any justification later on, only after he filed the application for anticipatory bail. He points out that a sealing machine, which was available in the premises is one, which was brought into Kerala by one Aboobacker of Pallikkara after B.A.No. 7983 of 2007 2 making the necessary payments to bring it to Kerala. That person has not been proceeded against. The petitioner is unnecessarily proceeded against, submits the counsel. 3. The learned Prosecutor opposes the application. He concedes that at the time of detection culpable involvement of the petitioner was not ascertained. But in the course of the investigation, the person who is in management of the building on behalf of the owner has been questioned and his statement revealed that the building had been entrusted to the petitioner. The petitioner has to be interrogated in detail. Further investigation has got to be conducted. The involvement of the said Aboobacker of Pallikkara has got to be investigated and ascertained. At any rate, the petitioner, who is now shown to be the person who was in possession of the premises, is not entitled for anticipatory bail. Grant of anticipatory bail to him will hamper the smooth course of investigation. He may be directed to appear before the Investigating Officer and co-operate with him, submits the Prosecutor. 4. I have perused the case diary and considered the submissions made by the learned counsel for the petitioner and the learned B.A.No. 7983 of 2007 3 Prosecutor. I find no reason at the moment to discard or disbelieve the statement that the building was entrusted to the petitioner, in whose possession it was at the time when the contraband articles were recovered. At this early stage of investigation I shall not embark on any detailed discussion on merit about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that on an anxious consideration of all other relevant circumstances, I am unable to perceive any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioner. This, I agree with the learned Prosecutor, is a fit case where the petitioner must be directed to appear before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with B.A.No. 7983 of 2007 4 law and expeditiously. (R. BASANT) Judge tm