Hameed P.A. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942 Bail Appl..No.3776 OF 2020** **CRIME NO.934/2020 OF Kalady Police Station , Ernakulam** ## **PETITIONER/A8:** **HAMEED P.A., AGED 41 YEARS S/O ASSAINAR, PUTHUKKADAN HOUSE, PALLIKAVALA , MUDIKKAL P.O PERUMBAVOOR -VIA, ERNAKULAM DISTRICT-683547. 683547** **BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SMT.K.S.ARCHANA** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 682031 2 DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR, PERUMBAVOOR P.O., ERNAKULAM DISTRICT683542.** **R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **SMT.K.K.SHEEBA PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14.7.2020, THE COURT ON 22.07.2020 PASSED THE FOLLOWING:** BA 3776/20 2 ## O R D E R BA No.3776 of 2020 ------------------------------------Dated this the 22[nd] day of July, 2020 Application under Section 438 of Cr.P.C for anticipatory bail. 2. The applicant is arrayed as the 8[th] accused in Crime No.934/2020 of Kalady Police Station for having allegedly committed offences punishable under Sections 55(a), (f), (g), (h) and (i) of the Kerala Abkari Act. 3. On 26.4.2020 at about 2:30 PM at a place called Marottichuvadu junction in Mattoor village, the Sub Inspector of Police, Kalady found accused 1 to 4 in an Innova car bearing registration No.KL-34/D-8076 coming along the Kalady-Angamali Road from West to East and on intercepting them, recovered 12 plastic cans containing 5 litres of illicit spirit each from inside the car and also recovered 18 plastic bottles having a capacity of one litre each and 4 cans having a capacity of 5 litres stored at the place named "Black Panda Auto Hub" situated about 700 metres away from where the car BA 3776/20 3 was intercepted. A total quantity of 38 litres of illicit spirit mixed with colour was seized from the aforesaid place. The said accused were involved in selling coloured spirit as Indian made foreign liquor and they had with them a sum of Rs.76,000/- being the sale proceeds of such spurious liquor. 4. Subsequent investigation by the Deputy Superintendent of Police, Perumbavoor revealed the involvement of the applicant and others. The allegation against the applicant is that he had given information to the 9[th] accused, Mansoor Ali, regarding manufacture of hand sanitiser by a company in Goa, named Shribhal Mikelin Distillery Pvt. Ltd. 5[th] accused had worked as an agent to deliver the spirit to accused 1 to 4 for the purpose of mixing it with the colour and other ingredients to convert it into IMFL and sell it. The 6[th] accused is the owner of Naaj Medicals, who has under instructions of accused 9 and the applicant, imported spirit under the guise of hand sanitiser from the distillery at Goa. The 7[th] accused purchased the said hand sanitiser from Naaj Medicals and handed it over to the applicant. Hence all the accused have BA 3776/20 4 committed the offence punishable under the Abkari Act. 5. The applicant would contend that he is a businessman involved in transportation and sale of sawdust collected from the various timber depots and saw mills in Perumbavoor, Kalady and other places. He had gone to Goa in connection with his business on 25[th] of January 2020 and had got acquainted to the persons connected with the aforementioned distillery in Goa. After returning to Kerala, he apprised the 9[th] accused about the scope of business in the sale of sanitisers, which has been included as an essential commodity by the Central Government vide a notification produced as Annexure-L. The 9[th] accused contacted the 6[th] accused who is the owner of Naaj Medicals and the 6[th] accused placed orders vide Annexure-D invoice for Rs.2,092,888/-and got transported from Goa vide Annexure-E, e-Way bill on 09.04.2020. Considering the need for hand sanitisers in Kerala, A6 purchased another consignment of hand sanitisers on 13.04.2020 vide Annexure-F invoice for Rs.15,17,824/-delivered vide Annexure-G e-Way of even date. One Sabin Krishnan, who had connections with Naaj Medicals, got into a BA 3776/20 5 lease agreement with A9 on 01.04.2020 and took on lease the warehouse belonging to A9. The sanitisers imported from Goa was stored in the aforesaid warehouse for onward distribution to various places. The applicant contends that the entire deal of importing hand sanitisers from Goa was legal and that he does not have any connection whatsoever with the alteration of hand sanitisers into IMFL by accused 1 to 4. He has no criminal antecedents and therefore, he may be released on pre-arrest bail. 6. The learned Public Prosecutor, Smt. K.K Sheeba, vehemently opposes the application for bail stating that the applicant is the kingpin in importing the sanitisers from Goa with the intention of distributing those sanitisers having 70 percent ethyl alcohol as IMFL in the State of Kerala using the drug licence of Naaj Medicals and it is the applicant with the concurrence of the 9[th] accused, committed the offence. Releasing him on bail would adversely affect the investigation of this case which is still at a nascent stage. 7. I am not getting into the details of BA 3776/20 6 maintainability of the accusations made against the applicant. He has approached this Court by filing Crl. MC No.2876/2020 for quashing the F.I.R in this case as against him under Section 482 of Cr.P.C and the same is pending consideration before a different Bench of this Court. 8. Prima facie there is evidence to indicate the involvement of the applicant in acquiring the sanitisers from Goa. It is those batch of sanitisers which was misused by accused 1 to 4 for being sold as IMFL. The hand sanitisers not only include 70 percent of ethyl alcohol, it also contain other harmful ingredients like hydrogen peroxide and sodium hydroxide apart from glycerin and perfume. Those ingredients would definitely go to harm the consumers who consume it as IMFL. 9. Section 41A of the Abkari Act says that no person accused of an offence punishable for a term of imprisonment for three years or more shall be released on bail or on his own bond unless: “(1) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to BA 3776/20 7 oppose the application for such release, and (2) Where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes an application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail". 10. The Hon'ble Supreme Court in Muralidheeran v. State of Kerala [2001 KHC 411] deprecating granting of pre arrest bail to an accused implicated of offence under the Abkari Act and referring to the embargo under Section 41 A of the Act, has held thus:- "The above provision is in pari materia with S.37 of the Narcotic Drugs and Psychotropic Substances Act. This Court has held, time and again, that no person who is involved in an offence under that Act shall be released on bail in contravention of the conditions laid down in the said Section (Vide Union of India v. Ram Samujh & Anr. (JT 1999 (6) SC 397 = 1999 (9) SCC 429). If the position is thus in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the court for pre arrest bail knowing that he would also be implicated as an accused. Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. We express our reprobation at the supercilious manner in which the Sessions BA 3776/20 8 Judge decided to think that "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the coaccused." 11. The case in hand also deals with huge quantity of spirit/hand sanitisers being mis-utilised by unscrupulous elements and the embargo under Section 41A Abkari Act prevents this Court from entertaining an application for anticipatory bail. That apart ,there are presumptions under Section 64 of the Abkari Act which assists the prosecution until the evidence is reported by the accused. That stage has not yet reached in this case. Under the circumstances, the application for anticipatory bail is only to be dismissed and I do so. The applicant is directed to surrender before the investigating officer and cooperate with the investigation. Sd/ASHOK MENON JUDGE jg