IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 Bail Appl..No. 3939 of 2008() ----------------------------- CRIME NO.31/07 OF CHALAKKUDY EXCISE RANGE PETITIONER/ACCUSED ----------------------------------- PAVITHRAN, AGED 34 YEARS, S/O.KUTTAPPAN, THACHANADAN HOUSE, KUTTICHIRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHALAKKUDY, THRISSUR DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- B.A.No.3939 of 2008 ------------------------------------------- Dated this the 26th day of June, 2008 ORDER This petition is for anticipatory bail. 2. According to the prosecution, 475 litres of toddy kept in cans were found in a jeep which was seen abandoned by the side of the public road. The vehicle and the articles were seized by the Excise Inspector and on investigation, it was found that the petitioner is the owner of the jeep and hence, a crime is registered against him under Section 55(a) of Abkari Act. 3. Learned counsel for the petitioner submitted that the toddy seized on investigation is found to be pure toddy. It was not illicit liquor. As per the information of petitioner, genuine toddy was being collected by the various toddy tappers to be distributed to various toddy shops and for this purpose, the toddy contractor used the vehicle belonging to the petitioner. Petitioner has allowed the contractor to use the vehicle. A permit is required for transportation of toddy, but the contractor BA No.3939/08 2 did not obtain a permit. Since, it is genuine toddy, the contractor could have obtained that permit. 4. But, petitioner is now being prosecuted for offence under Section 55(a) on the ground that he has no permit to transport toddy. The petitioner is not expected to hold any permit because he is not engaged in sale or possession of toddy. He is not engaged in transportation of toddy also. He is only a jeep owner who has given his jeep to an abkari contractor for his use. It is also pointed out that the RC owner is another person, but petitioner is in possession of the vehicle on the strength of an agreement for sale. In such circumstances, police has to actually proceed against the abkari contractor, but, no steps are taken to implicate him in this offence so far. Though the incident happened on 19.12.2007 and six months have elapsed now. The petitioner therefore requests for anticipatory bail. 5. This petition is opposed. According to the learned public prosecutor, toddy has been seized from the vehicle belonging to the petitioner and hence, he cannot wriggle out from his criminal responsibility. In law, he is presumed to be in possession of the liquor and if he has no permit, it is for him to BA No.3939/08 3 explain and account for the possession of toddy, by virtue of Section 64 of the Abkari Act. It is also submitted that the petitioner has not surrendered before the Investigating officer though notice was issued to him. 6. On hearing both sides, it is clear that the petitioner has come forward with an explanation. It is not clear, why the police has not found out the abkari contractor or the toddy shop owners for whom the toddy was being transported or collected. There is no allegation that the petitioner is involved in other offences under the Abkari Act. In such circumstances, I pass the following order: (1) If the petitioner surrenders before the Magistrate Court concerned and files bail application with notice to the APP, he shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate on the following conditions: (i) Petitioner shall report before the Investigating Officer on every Monday and Thursday between 10 am and 1 pm until further orders. BA No.3939/08 4 (ii) He shall not influence or threaten any of the witnesses or tamper with the evidence and in case of breach of this condition, while on bail, bail is liable to be cancelled. The petition is allowed. K.HEMA, JUDGE csl