IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Bail Appl..No. 4996 of 2008() ----------------------------- CR. NO.62/08 OF EXCISE RANGE, KOLLAM PETITIONER ----------------- SANOJ, S/O.SIVANANDAN, GOKULAM VEEDU AMRUTHAKULAM RESIDENCE ASSOCIATION NAGAR, HOUSE NO.1093, MUNDAKKAL VILLAGE, KOLLAM. BY ADV. SRI.V.VENUGOPALAN NAIR RESPONDENTS: ------------- 1. EXCISE INSPECTOR , EXCISE RANGE, KOLLAM 2. EXCISE CIRCLE INSPECTOR, KOLLAM 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 4996 of 2008 ----------------------------------------- Dated this the 6th August, 2008 O R D E R This petition is for bail. 2. The alleged offence is under Section 55(a) of the Abkari Act. According to prosecution, while the Excise party was on patrol duty and when they reached the place of occurrence, reliable information was received that toddy was kept in a 2 cents of property and on reaching there, they found the accused standing in the property. An auto rickshaw was also there in the property and three barrels were found on platform of the auto rickshaw. On examination, it was found to contain toddy. When enquiries were made to the petitioner, he disclosed his name and stated that the toddy used to be kept in the said property on several occasions earlier also on the strength of a permit. On further enquiries made, it was found that the petitioner had been in possession of the toddy without any permit. On search, it was found that there was 600 litres of toddy in possession of the property. The auto rickshaw and articles were seized. The petitioner was arrested from the spot and a case was registered against him on the same day, i.e., 16.7.2008. 3. Learned counsel for petitioner submitted that the petitoienr is only a driver of lorry No. KL-02-AB-482 and a permit was in BA.4996/08 2 respect of that lorry by which toddy can be transported from Palakkad to Kollam. The permit was issued to abkari contractors. The petitioner has not committed any offence and he was only transporting the toddy on the strength of the permit as usual, but when the lorry reached in the place of occurrence, there was some mechanical defect for the vehicle and it was taken for repair, as evidenced by Annexure-A(2). He informed the matter to the lorry owner, after unloading the toddy in an open property. But, in the meantime, the Excise officials came there and took away the article into their custody. The petitioner was arrested, even though he told the officials that toddy was being transported under a permit. The copy of the permit is marked as Annexure-A(1). 4. This petition is opposed. Learned Public Prosecutor submitted that the petitioner was not having the permit in his possession at the time when the article was seized. The petitioner has also not established his connection of the toddy with the permit, Annexure A(1). It was also submitted that no abkari contractor has come forward claiming the toddy which comes to 600 litres. The investigation is going on and bail may not be granted at this stage of investigation, it is submitted, especially since the petitioner has not given satisfactory explanation for the possession of the toddy. 5. On hearing both sides and on perusal of the case diary, it is clear that the article was seized from a property which belonged to BA.4996/08 3 a particular person. But that person was not made an accused. The prosecution has no case that petitioner was not found dealing with the article, but, he was only present at the scene. It is also relevant to note that though an auto rickshaw was seized on the allegation that there was toddy in the auto rickshaw, the owner of the auto rickshaw was also not made an accused. No enquiry or investigation was conducted into only of these aspects. 6. It is seen from the mahazar itself that the petitioner disclosed to the Excise Inspector that he was the driver of a vehicle which was used for transporting toddy under a permit from Palakkad to Kollam. The article was seized from Kollam itself. Annexure A(1) permit reveals that vehicle bearing registration No. KL-02-AB-482 was having permit to transport toddy from Palakkad to Kollam. Even though more than 14 days have elapsed, no investigation was conducted into any of the relevant aspects. No witnesses are questioned in connection with the relevant aspects which are of prime importance. 7. Therefore, there is no point in keeping the petitioner in custody any longer waiting for the investigating officer to choose a convenient date to make an investigation and by questioning the relevant witnesses. There was sufficient time for him to collect sufficient materials to implicate or incriminate the petitioner apart from the mere seizure from a property which admittedly did not BA.4996/08 4 belong to the petitioner. In the light of the explanation given by the petitioner to the Excise Inspector at the time of arrest which was recorded in the mahazar itself, investigating officer ought to have taken steps to conduct an investigation without any delay to confirm his guilt or innocence. Since investigator wasnot vigilant in conducting investigation without delay it may be possible to draw an adverse inference that if a proper investigation is conducted, it may go against the allegations now made. Hence, the petitioner is granted bail on the following terms and conditions: i) Petitioner shall execute a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned. ii) Petitioner shall report before the investigating officer on every Monday, Wednesday and Thursday between 10 AM and 1 PM. iii) Petitioner shall not influence or intimidate any witness or tamper with evidence or commit any offence while on bail and in case of breach of this condition, the bail is liable to be cancelled. Petition is allowed. K.HEMA, JUDGE vgs.