Kerala High Court
K.Ganesan vs State Of Kerala on 5 June, 2013
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
WEDNESDAY, THE 5TH DAY OF JUNE 2013/15TH JYAISHTA 1935
Bail Appl..No. 2830 of 2013 ()
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CRIME NO. 27/2013 OF KOZHIKODE EXCISE RANGE OFFICE ,KOZHIKODE DISTRICT
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PETITIONER/ACCUSED :
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1. K.GANESAN, AGED 44 YEARS,
S/O.APPUTTY, KOGOSSERY HOUSE, MUNDAKKAL,
POOVATTUPARAMBA POST, CHERAKULATHUR AMSOM,
MUNDAKKAL DESOM, KOZHIKODE.
2. S.BIJU,AGED 37 YEARS,
S/O.BALAN, SURIAN KANDY HOUSE, UTTUKULAM,
NEDUNGOTTUR AMSOM DESOM, ERNJIPALAM, CALICUT.
BY ADVS.SRI.A.SUDHI VASUDEVAN
SMT.K.PUSHPAVATHI
RESPONDENTS/COMPLAINANT:
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1. STATE OF KERALA,
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.PIN-682 031
2. EXCISE INSPECTOR,KOZHIKODE.PIN-673 001
BY PUBLIC PROSECUTOR SMT.R.REMA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 05-06-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sts
S.S.SATHEESACHANDRAN, J
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B.A.No. 2830 of 2013
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Dated this the 5th day of June, 2013
ORDER
Petitioners are the accused in crime No.27/2013 of Kozhikkode Excise Range, registered for offences punishable under Sections 56(b) and 57(a) of the Abkari Act. 1st Petitioner is the licensee of a toddy shop and the 2nd petitioner, salesman of that shop. They have filed the above application seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, for short "the Code".
2. Sample of toddy collected from the shop on analysis, was found to contain Ethyl Alchohol in excess of the prescribed standard and that gave rise to the registration of the crime. Allegation is that petitioners have mixed some substance to add the alchoholic content of toddy stored and kept for sale in the shop for sale.
3. Learned counsel for petitioner contended that the minor variation in the sample analyzed over the alchoholic content noticed could be caused by natural causes like fermentation. In similar cases the Apex Court has granted orders of stay of the criminal proceedings against persons proceeded in prosecution is another submission of the counsel. Sampling done by the Excise officials was not in B.A.No. 2830 of 2013 2 terms of the procedure prescribed is the further submission to persuade me to grant the petitioners anticipatory bail. I find none of the submissions made can be given much merit in considering whether petitioners proceeded for offences under the Abkari Act can be granted discretionary relief of pre-arrest bail. Even in the case of a regular bail of a person suspected of committing offences under the Abkari Act, the interdiction under Section 41 A of the Abkari Act has to be respected and given effect to. When that be the case, where sample collected from the shop operated by petitioners on analysis disclosed contents of Ethyl Alchohol in the toddy in excess of the prescribed standard, there is enough room to suspect complicity of petitioners in the offences imputed of. When such be the case, petitioners are not entitled to the discretionary relief of pre-arrest bail. However, having regard to the nature of the offence imputed petitioners can be provided an opportunity to surrender and co-operate with the investigation of the crime.
In case petitioners surrender before the investigating officer before 10 A.M on 12.06.2013, after their arrest and interrogation, they shall be produced before the magistrate of B.A.No. 2830 of 2013 3 competent jurisdiction without delay. On such production, if any application for bail is moved by petitioners with advance notice to the Assistant Public Prosecutor, the magistrate shall consider such application and dispose it on its merits in accordance with law.
Sd/-
S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE DG