Dismissed

Joseph Thomas @ Cijo v. State of Kerala

Kerala HC9 Dec 2021Bail Appl./6015/2021

Case brief

AI extract

What is this about?

This judgment dismisses an application for anticipatory bail filed under Section 438 CrPC in a case involving possession of arrack and wash. The court held that bail under Abkari Act offences is restricted by Section 41A of the Act unless reasonable grounds exist to believe the accused is not guilty.

What did the court decide?

Bail application dismissed; petitioner not entitled to anticipatory bail.

Joseph Thomas @ Cijo Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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THURSDAY, THE 9^TH DAY OF DECEMBER 2021/18TH AGRAHAYANA, 1943 BAIL APPL. NO. 6015 OF 2021

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CRIME NO.62 OF 2021 OF CHERTHALA EXCISE RANGE OFFICE,

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ALAPPUZHA DISTRICT.

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PETITIONER:

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JOSEPH THOMAS @ CIJO, AGED 41 YEARS, S/O.THOMAS, THAIKUTTATHIL, PALLIPURAM PANCHAYATH, WARD 17, PALLIPURAM P.O., CHERTHALA - 688 514.

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BY ADVS. SRI.MANU HARSHAKUMAR SMT.MARY ANN SAJI

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2 EXCISE INSPECTOR

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CHERTHALA EXCISE RANGE - 688 524, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031.

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SMT. SEENA C- PUBLIC PROSECUTOR.

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON 09.12.2021 DELIVERED THE

FOLLOWING:

B.A.No.6015 of 2021

P.G. AJITHKUMAR, J.

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B.A.No. 6015 of 2021

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Dated this the 9^th day of December, 2021

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O R D E R

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This is an application for anticipatory bail filed under

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Section 438 of the Code of Criminal Procedure, 1973.

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The petitioner is the accused in Crime No.62 of 2021 of Cherthala Excise Range Office, Alappuzha District. The crime was registered alleging offence punishable under Section 8(1) & (2) and 55(g) of the Abkari Act.

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The allegations against the petitioner are that at about 4.00 p.m. on 06.06.2021 he was found in possession of four litres of arrack and 35 litres of wash. The Excise Enforcement and Anti-narcotic Special Squad was on patrol duty and on their search, they found the accused dealing with the contraband and on seeing the party, the petitioner took on his heels and escaped.

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Heard both sides.

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The petitioner contends that the alleged incident

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B.A.No.6015 of 2021

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occurred on the backside of the house of the petitioner and not in the property in his possession. There is absolutely nothing to connect the petitioner with the alleged crime. He is a person having no criminal or bad antecedents. This is a case where the provisions of Section 41A of the Abkari Act cannot

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be applied. The petitioner thereby contends that he is innocent and entitled to get anticipatory bail.

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The learned Public Prosecutor submitted, based on the statement of facts furnished by the investigating officer, Excise Circle of Inspector, Cherthala, a copy of which has been made available, that the incident occurred in the property in the possession of the petitioner and from the materials so far collected it is established that it was petitioner, who committed the offence. The learned Public Prosecutor further contended that in case of granting bail to the petitioner, the investigation in the case will be adversely affected.

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The crime was registered with the definite allegation that when the patrolling party was approaching the place of occurrence and saw the petitioner in possession of a

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B.A.No.6015 of 2021

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container, he on noticing the patrolling party nearing him, he ran away. It is seen that enough materials are on record to show that the place where the contraband, which includes not only the arrack, but 35 litres of wash as well, was found, has been in the possession of the petitioner.

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The learned counsel appearing for the petitioner contended that the provisions of Section 53A of the Abkari Act was not complied with the searching party inasmuch as the wash after preparation of its sample was destroyed at the place itself. Such a contention does not deserve consideration at this point of time, especially when the petitioner allegedly was in possession of arrack as well. The searching party seized the entire arrack.

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In Biju T.M. v. State of Kerala and another

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[2021 (2) KLT 445] this Court while considering an application for anticipatory bail of a person involved in an offence punishable under Section 55(i) and 67B of the Abkari Act held that granting of bail to an accused under the Abkari Act is circumscribed by the provisions under Section 41A of

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B.A.No.6015 of 2021

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the Abkari Act and unless there are reasonable grounds to believe that the applicant is not guilty and that he is not likely to commit any offence while on bail, he is not entitled to be released on bail. It was further held that the argument of the learned counsel for the applicant that the powers of the High Court under Sections 438 and 439 of the Code are untrammelled by the restrictions imposed under Section 41A of the Abkari Act, is not acceptable for the reasons stated above.

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In view of the said legal principle and the factual aspects of this case mentioned above, I hold that the petitioner is not entitled to get an anticipatory bail. The bail application is therefore dismissed.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Joseph Thomas @ Cijo v. State of Kerala

Case brief

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Joseph Thomas @ Cijo v. State of Kerala

Case brief

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