IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 Bail Appl..No. 4795 of 2009() ----------------------------- CRIME NO.345/2009 OF MALAPPURAM POLICE STATION .................... PETITIONER/ACCUSED -------------------------------------- C.K.RAFEEQUE,S/O.C.K.MUHAMMED, CHELATTIL KALLADITHODI HOUSE, MELMURI,MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION-THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.4795 of 2009 --------------------------------------------- Dated this the 20th day of January, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.345 of 2009 of Malappuram Police Station. 2. The offence alleged against the petitioner is under Clause 16 of the Kerala Kerosene Control Order, 1968 and Section 7(1) of the Essential Commodities Act. 3. The application for anticipatory bail was filed on 17.8.2009. On one occasion it was argued. The learned counsel for the petitioner submitted that no sample was taken at the time of seizure of the contraband and therefore, no prosecution would lie in the light of the decision of this Court reported in Kunhimoideenkutty vs. State of Kerala (1988(2)KLT 128). 4. The case was adjourned at the request of the learned Public Prosecutor on several occasions to find out whether the sample was taken. The undertaking not to arrest the petitioner was also recorded. Therefore, the petitioner was not arrested. Today, the case came up again for hearing. The learned Public BA No.4795/2009 2 Prosecutor submitted that after completing the investigation, charge sheet was filed on 13.12.2009 before the court of the Judicial Magistrate of the First Class, Malappuram. The learned Public Prosecutor submitted that the decision in Kunhimoideenkutty vs. State of Kerala (1988(2)KLT 128) may not apply in the case. It is submitted that now the kerosene has distinct colour, if it is an item to be supplied through public distribution system. For the purpose of disposing of this Bail Application, it is not necessary to resolve this controversy. Now, the charge sheet is filed. After the filing of the charge sheet, there cannot be any apprehension that the investigating officer would arrest the petitioner. Therefore, the ground for granting an order for anticipatory bail under Section 438 of the Code of Criminal Procedure is not available in the case at present. Since the charge sheet is filed, I close this Bail Application reserving the right of the petitioner to move for regular bail. K.T.SANKARAN, JUDGE csl