IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Bail Appl..No. 1546 of 2008(S) ------------------------------ CRMP.786/2008 of DISTRICT COURT, PALAKKAD CRIME NO.57/08 OF CHITTUR POLICE STATION, PALAKKAD. .................... PETITIONER/ACCUSED NO.1 ---------------------------------------- RAVEENDRANATHAN, AGED 50 YEARS, S/O. KESAVAN, POLANYKALAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, CHITTUR POLICE STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1546 of 2008 ------------------------------------------------- Dated this the 24th day of March, 2008 ORDER Application for anticipatory bail. The petitioner is the 1st accused in a crime registered under the Kerala Abkari Act. On receipt of discreet information, the police party reached the premises belonging to the petitioner. Two vehicles of which the petitioner is the registered owner were also parked in front of the building. From the building as well as from the two vehicles parked in front of the building, a total quantity of 2250 litres of toddy were seized by the police party. It is the case of the prosecution that the petitioner is carrying on an unauthorised business in toddy and was found to keep in his possession this large quantity of toddy. Accused 2 and 3 – the driver and the cleaner of the vehicle, were arrested at the spot. They were released on bail later as per the order dated 6/3/08 B.A. No. 1546 of 2008 -: 2 :- in B.A.No.1334/08. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. He is not carrying on any unauthorised business. It is admitted that the building in question belongs to him. But it is contended that the building is not in the possession of the petitioner and that he has let out the same to the 3rd accused – a cleaner, employed in a vehicle belonging to him. It is his further contention that both the vehicles do belong to him. He had permitted the licensees of toddy shops to use the vehicles for the purpose of transportation of toddy from Chittur to the premises of the respective licensees. He contends that the respective licensees have obtained permits and transportation of toddy in those vehicles is covered by valid permits issued in the name of the licensees showing the number of the respective vehicles. In short his contention is that he was not in possession of this quantity of 2250 litres of toddy. Such toddy was in the possession of his employee – A3, and such possession was incidental to the licensed transportation of the toddy as per the permits issued to the respective licensees. 3. The learned counsel for the petitioner further contends B.A. No. 1546 of 2008 -: 3 :- that there is valid permit to transport 1050 litres of toddy every day in the vehicles belonging to the petitioner. On 7/2/08 there was a harthal call and therefore the toddy which was tapped and collected on that day could not be transported. In these circumstances, the 3rd accused was compelled to store the toddy in the premises belonging to the petitioner which allegedly was leased to the 3rd accused. On 8/2/08 at 12 noon the 3rd accused had in his possession the toddy which was to be transported on the previous day i.e., on the harthal day on 7/2/08 as well as the toddy which was tapped and collected and which was to be transported on 8/2/08. It is, in these circumstances, that about 2100 litres of toddy were available in the premises as well as in the two vehicles belonging to the petitioner when the police party seized the same. Accused 2 and 3 were engaged in the act of transportation of toddy as per the permit and in no way is the petitioner involved in keeping possession of such toddy or transportation of the same. In these circumstances, the learned counsel for the petitioner prays that anticipatory bail may be granted to the petitioner. The learned counsel for the petitioner submits that if at all the alleged offence can only be B.A. No. 1546 of 2008 -: 4 :- transportation of excess quantity beyond what is permitted under the permits issued for transportation and in these circumstances, the petitioner does not deserve to endure the trauma of arrest and detention. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the petitioner is carrying on unatuhorised business in collecting and transportation of toddy and the contention that the toddy was stored in the premises of the petitioner by his employee – the 3rd accused, cannot be swallowed without a pinch of salt. At this point of time the petitioner deserves to be interrogated in detail. Truth has to be ascertained from him. At the moment and with the available inputs, the needle of suspicion is pointed strongly at the petitioner – that he was carrying on unauthorised business of collecting and transportation of toddy. The theory that the building was let out to the 3rd accused and that the 3rd accused had stored the toddy in the premises cannot at the moment be accepted. At any rate, the petitioner does not deserve to be armed with an order of anticipatory bail now, submits the learned Public Prosecutor. B.A. No. 1546 of 2008 -: 5 :- 5. I have considered all the relevant inputs. I have heard the submissions of the learned counsel for the petitioner. I have perused the documents produced by the petitioner. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor that the petitioner does not deserve to be armed with an order of anticipatory bail at the moment. It is too early to enter upon a finding that the version set up by the petitioner is true, correct or acceptable. The police is certainly entitled in a case like this to interrogate the petitioner and ascertain all the relevant facts. It is by now trite that powers under Sec.438 of the Cr.P.C. are not to be invoked as a matter of course. Such powers can be invoked only when the court is satisfied that the powers of arrest which the State and its officials have are about to be misused or used with oblique and mala fide motives. I am unable to find any such circumstances in the instant case. I agree with the learned Public Prosecutor that the petitioner must surrender before the learned Magistrate or the Investigating Officer and then seek regular bail in the normal and ordinary course. I am not persuaded to invoke the extraordinary equitable discretion under B.A. No. 1546 of 2008 -: 6 :- Sec.438 of the Cr.P.C. in favour of the petitioner. 6. 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