Jubin vs State Of Kerala

This application is filed under Section 438 of the Code of Criminal Procedure.

The petitioners herein are the 2nd and 3rd accused in Crime no.24 of 2018 of the Upputhara Police Station, Idukki district. The offences alleged are under Sections 8(1) and (2) of the Kerala Abkari Act.

When the petition came up for hearing, the learned counsel for the petitioners submitted before this Court that the Police is now trying to implicate these petitioners in the above Crime alleging that the petitioners are also involved in distillation of arrack.

Heard the learned Public Prosecutor.

As per the prosecution case, on 8.01.2018 on a telephonic message received to the police that one Kannakal Reji, at his residential home is conducting illicit distillation of arrack along with others. Police party reached at the above referred house and when they entered the house, they found the above referred Reji with a bottle containing arrack. He made a confession statement implicating these petitioners also. Thereon the petitioners herein are also made additional accused.

Thus what comes out is that an offence under Section 8(1) and (2) of the Abkari Act is now alleged against the petitioners. Categorically police stated that A1 was found in possession of 100 ml of arrack. There is no case for the prosecution that any other implements for distillation seized from the house. Police got no case that anybody ran away from therein.

Considering the totality of the case, I feel that anticipatory bail can be granted in this case, even though the offence alleged is under the special statute. Surely there is a provision under Section 41 of the Abkari Act, wherein the Prosecutor should be given an opportunity to oppose the Bail Application when arrested. But when prima facie there is no allegation that the petitioner was found in possession of the arrack, but only an allegation that they were involved in distillation of arrack, I feel that it may be not proper to dismiss the bail application saying that the offence alleged is under a Special Statute. It is to be remembered that now the Investigating Officer is having the powers to file a report under Section 173 of the Cr.P.C.

Thus in the event of arrest, the petitioners shall be released on bail on executing a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties each for the like amount to the satisfaction of the officer concerned. In the event of arrest and release, the petitioner shall appear before the Investigating Officer on all Saturdays in between 10 am and 12 noon for a period of two months. It is further made clear that, if an application under Section 311 A of the Cr.P.C is filed before the concerned Magistrate, the petitioners shall co-operate with the same.

On the above conditions, this anticipatory bail application is allowed.