Kerala High Court
Jomi Thomas vs State Of Kerala on 26 June, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942
Bail Appl.No.3337 OF 2020
CRIME NO.77/2020 OF Hosdurg Excise Range Office , Kasargod
PETITIONER/S:
1 JOMI THOMAS,
AGED 45 YEARS, S/O. THOMAS,
931/A, PUTHUPARAMBIL HOUSE, MELADUKKAM,
MAVUNGAL, KASARAGOD-671 531.
2 THOMAS,
AGED 72 YEARS, S/O. THOMAS,
931/A,PUTHUPARAMBIL HOUSE, MELADUKKAM,
MAVUNGAL, KASARAGOD-671 531.
BY ADV. SRI.RAHUL SASI
RESPONDENT/S:
1 STATE OF KERALA,
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
2 THE EXCISE RANGE OFFICER
HOSDURG EXCISE RANGE,
KASARAGOD-671 531.
OTHER PRESENT:
SRI.AMJAD ALI, SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.3337 of 2020
-2-
O R D E R
Dated this the 26th day of June 2020 This is an application for anticipatory bail.
2. The petitioners are son and father respectively and they are anticipating arrest in Crime No.77/2020 of Hosdurg Excise Range for having allegedly committed the offences punishable under Section 55(g) of the Abkari Act.
3. The contention of the petitioners is that they are in joint ownership and possession with others in the family of about 40 acres of land, which has various cultivation. They are staying about 10 kms. away from the said property. The said property has public roads on all four sides. Because of the pandemic situation and the place, where the petitioners are residing, being declared as red zone, they were not in a position to come out of their house. It is alleged that Excise party seized 145 litres of wash and some utensils for the purpose of distillation of arrack from the said property belonging jointly to the petitioners and other co-owners. The petitioners distance themselves from the said seizure and state that they are absolutely innocent and do not know about the alleged articles recovered from their property. It is further stated that Annexure A1, which is the ownership certificate and gas connection, indicates that they are residing 10 kms. away from the said property and could not have reached there in B.A.No.3337 of 2020 -3- view of the pandemic situation and the total ban on movement.
4. The prosecution case is that on 16.04.2020 the Excise party saw the 1st petitioner handling about 145 litres of wash in the said property and fled away on seeing the officials. It is only the 1st petitioner who has been implicated in the crime and the 2 nd petitioner has not been implicated. Hence, the apprehension of the 2 nd petitioner is misplaced. The wash and the utensils have been recovered from the property, and therefore, the 1st petitioner will have to be arrested and interrogated with regard to the articles seized, is the submission made by the learned Public Prosecutor.
5. The learned Counsel for the petitioners submits that in view of the pandemic situation existing in the Country, it has absolutely impossible for the 1 st petitioner to reach the scene of occurrence, and therefore, it is evident that it is a falsely foisted case and that the truth may be that someone had planted the articles in their property, which has been misused by the Excise officials. Hence, he is entitled to a pre-arrest bail.
6. In view of the embargo under Section 41A and the presumption available under Section 64 of the Abkari Act to the prosecution, I find that the petition for pre-arrest bail cannot be entertained by this Court. The Apex Court in Muraleedharan v. State of Kerala, 2001 KHC 411 has held B.A.No.3337 of 2020 -4- that anticipatory bail of the accused in an abkari offence cannot be entertained. Under the circumstances, the petition is only to be dismissed.
7. The 1st petitioner is therefore directed to surrender before the investigating officer within two weeks and the investigating officer shall, after interrogation, produce him before the jurisdictional Magistrate. The 1 st petitioner shall be at liberty to apply for regular bail before the jurisdictional Magistrate, which shall be disposed of preferably on the very same date, keeping in view the dictum of this Court in Sukumari v. State of Kerala, 2001 (1) KLT 22 and also considering the mitigating circumstances pointed out by the learned Counsel for the petitioners.
Sd/-
dkr ASHOK MENON
JUDGE