Jayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934** **Bail Appl..No. 8856 of 2012 (B)** **----------------------------------------** ## **APPLICANT/ACCUSED(S):** **---------------------------------------** **JAYAKUMAR, AGED 32 YEARS S/O.P.MURALEEDHARAN, THERODATHU HOUSE THOTTAKKATTUKARA KARA, ALUVA TALUK KOCHI PIN 683 108.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.PAUL MATHEW (PERUMPILLIL) SRI.PRASUN.S** ## **RESPONDENT/COMPLAINANT-STATE:** **---------------------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 031. REPRESENTING THE CIRCLE INSPECTOR OF EXCISE CHITTOOR EXCISE RANGE.** **BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON 13.12.2012 PASSED THE FOLLOWING:** **DCS** ## **P.BHAVADASAN, J.** ---------------------------------------------------BA No.8856 of 2012 ---------------------------------------------------Dated this the 13[th] day of December 2012 ## Order The petitioner is the third accused in Crime No.CR 38/09 of Chittur Excise Range. On 05.10.2009 at about 8.45 pm, a lorry bearing Registration No.KL-02/6377 was intercepted by the Velanthavalam Excise Check Post. On checking the vehicle, it was found that it contained 1150 litres of spirit. The first and the second accused were arrested on the spot. During investigation, it was revealed that the petitioner was the owner of the vehicle at the relevant time and therefore, he was arrayed as the third accused. 2. The petitioner would claim that he has been falsely implicated with oblique motives. He makes mention of several notices received by him from the Excise Officer, to which he furnished replies pointing out that he had nothing to do with the vehicle at the relevant time and he was not involved in the transport of spirit, which was seized by the Excise officers. In spite of his specific stand and the documents produced by him to the effect that he is not the owner of the BA 8856/12 2 vehicle, the petitioner says that he was still implicated at the behest of some interested persons. Reliance is placed on the decisions in **Hassanar v. State of Kerala** (2008(1) KLT 921) and **Sony.C.Mathew v. State of Kerala** (2007 KHC 4187) for contending that even assuming all that the Investigating Agency says is true, still the owner of the vehicle cannot be made liable in the absence of any provisions in the Abkari Act. The learned counsel for the petitioner vehemently contended that the implication of the petitioner as the third accused is without any basis and foundation. The so-called agreement of sale in respect of the vehicle involved in the crime is a forged one and the petitioner had not obtained the vehicle as per the said document. The learned counsel went on to point out that a scrutiny of the sale agreement would clearly show that it does not contain the signature of the petitioner and also that the claim being that the sale consideration was paid by a cheque drawn on Federal Bank, since the petitioner had no such account, the entire allegations against him are false. 3. The learned Public Prosecutor very vehemently opposed the application and pointed out that the claim of the BA 8856/12 3 petitioner is baseless and he, in fact, was the owner of the vehicle at the relevant time. There are plenty of materials unearthed during investigation which would clearly point out the involvement of the petitioner in the transport of the contraband articles. The learned Public Prosecutor also emphasizes that the petitioner has been involved in several such crimes and is a regular transporter of spirit. It is also contended that the investigation is only progressing and granting anticipatory bail to the petitioner now, would impede the investigation. 4. After having heard the learned counsel for the petitioner and the learned Public Prosecutor and after having perused the records, as rightly pointed out by the learned Public Prosecutor, there seems to be no substance in the claim made by the petitioner. It is true that at the relevant time, as per the records, the registered owner of the vehicle was one Josy. But the said Josy, on getting notice from the Excise Officers, informed the officers that the vehicle had been sold to the petitioner and produced the relevant documents. The broker engaged in the transaction has also given statement to the effect that the vehicle was, in fact, transferred to the petitioner, BA 8856/12 4 the sale consideration was paid and the possession of the vehicle was taken by the petitioner. The claim of the petitioner that the so-called agreement, which is seen to have been produced before the Excise Officers, is forged and does not contain his signature, is not a matter to be gone into at this point of time. As of now, all that this court is concerned with, is whether there are prima facie materials to show the involvement of the petitioner. In fact, the petitioner had approached the Sessions Court, Palakkad, seeking the very same relief. That court, after an elaborate consideration of the contentions put forward by the petitioner, found them to be untenable and declined relief to the petitioner. 5. It may be that the petitioner had given replies to the various notices issued to him by the Excise Officers. But, as could be gathered from the records made available by the learned Public Prosecutor, it is too early to say whether the socalled sale agreement is forged or not. At any rate, there are materials to show that in all probability, the vehicle, at the relevant time, was possessed by the petitioner. BA 8856/12 5 6. Coupled with the above fact is that the petitioner is involved in similar crimes earlier also. He is alleged to be a dealer of such contraband articles and that too might indicate his involvement in the present case also. 7. It is interesting to note that the vehicle was specially designed to carry contraband articles. In fact, the vehicle was loaded with vegetables and at the time of interception by the Excise Officers, they were told that vegetables were being transported in the vehicle. After unloading the vegetables, the officers were able to locate secret chambers in the vehicle, in which the contraband articles were kept. 8. In the light of the fact that the petitioner is involved in similar crimes on earlier occasions and in the light of the various documents collected by the Investigating Agency and other materials obtained by them, it is difficult to believe the claim of the petitioner that he is totally innocent. In the facts and circumstances of the case, the question considered in the decisions referred to above, does not arise for consideration. This is not a case, where the owner of the vehicle is simply BA 8856/12 6 sought to be made liable on the basis of a seizure. There are materials as of now to show the possible involvement of the petitioner, especially considering his criminal antecedents. 9. The learned Public Prosecutor is perfectly justified in his submission that considering the seriousness and the gravity of the offence, granting anticipatory bail to the petitioner may impede the investigation. The result is that this application is devoid of any merits and is liable to be dismissed. I do so. **P.Bhavadasan, Judge** sta BA 8856/12 7