Shine, Binu V.R, Gireesh, Udayakumar, Jithin Thomas, Kochu Thressia, Sula Sasi, Kousalya, Smitha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942 Bail Appl..No.2159 OF 2021 CRIME NO.16/2021 OF Aluva Excise Range Office, Ernakulam** |**PETITIONER/S**<br>**:**|**PETITIONER/S**<br>**:**| |---|---| |**1**|**SHINE**| ||**AGED 55 YEARS**| ||**SON OF VIJAYAN, CHAKKALAPARAMBATH HOUSE,**| ||**KONGORPPILLY KARA, ALANGADU VILLAGE,**| ||**NORTH PARAVUR, ERNAKULAM DISTRICT**| ||**683518**| |**2**|**BINU V.R**| ||**AGED 49 YEARS**| ||**SON OF RAMAKRISHNAN, VYLOKKUZHI HOUSE,**| ||**MANNAMTHURUTHU KARA, VARAPPUZHA VILLAGE,**| ||**PARAVUR TALUK, ERNAKULAM DISTRICT**| |**3**|**GIREESH**| ||**AGED 49 YEARS**| ||**SON OF BALAN, THEKKUMKADU HOUSE,**| ||**KOZHITHURUTHU KARA, PUTHENVELIKKARA VILLAGE,**| ||**PARAVUR TALUK, ERNAKULAM DISTRICT**| |**4**|**UDAYAKUMAR**| ||**AGED 39 YEARS**| ||**SON OF SHANMUGHAN, NO.543/2,**| ||**MUTTIMAMPALLAM KARA,**| ||**KOZHINJAMPARA, VALIYAVALLAMPATHI VILLAGE,**| ||**CHITTUR TALUK, PALAKKAD DISTRICT**| |**5**|**JITHIN THOMAS**| ||**AGED 38 YEARS**| ||**SON OF THOMAS, VALIYAPARAMBIL HOUSE,**| ||**THURUTHIPPURAM KARA,**| ||**PUTHENVELIKKARA VILLAGE,**| ||**PARAVUR TALUK, ERNAKULAM DISTRICT**| Bail Appl..No.2159 OF 2021 2 **6 KOCHU THRESSIA AGED 59 YEARS WIFE OF PAULOSE, PADAYATTIL HOUSE, KACHERIPARAMBU KARA, KANJOOR, CHOWARA VADAKKUMBHAGOM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT** **7 SULA SASI AGED 50 YEARS WIFE OF SASI, KONNULLI HOUSE, VALLUVALLI DESOM, KOTTUVALLI VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT** - **8 KOUSALYA AGED 55 YEARS WIFE OF SIVAN, KARUVAPARAMBIL HOUSE, POYIKKATTUSSERY DESOM, NEDUMBASSERY VILLAGE, ALUVA TALUK** - **9 SMITHA AGED 44 YEARS WIFE OF JOBY, PALLATHU HOUSE, SRA LANE, CHOONDY, KEEZHUMADU VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031** **R1 BY PUBLIC PROSECUTOR SRI.SANTHOSH PETER SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.2159 OF 2021 3 ## **ORDER** ## **Dated this the 3rd day of March 2021** Application for regular bail under Section 439 Cr.P.C. The applicants are accused Nos.2 to 10 in Crime No.16/2021 of Aluva Excise Range Office, Ernakulam, for having allegedly committed offences punishable under Sections 58, 57(a), 55D, 56(b), 67B of the Kerala Abkari Act. 2. The prosecution case, in brief, is that on 27.02.2021 at about 11.30 a.m, the Aluva Excise Inspector and his party conducted search in T.S.No.6/2020-21 in Group No.II of Aluva Excise Range and allegedly seized 5546 litres of toddy which was found in two vehicles parked in front of the toddy shop and also in containers which were kept inside the toddy shop. The seizure was made as per Annexure-1 Seizure mahazar which was prepared by the detecting party. The detecting 4 Bail Appl..No.2159 OF 2021 officer tasted and smelled the liquid from all the containers and satisfied himself that it was toddy. The mahasar also indicates that eight toddy transport permits were also seized. Out of which five were inter divisional transport permits and three were inter range transport permits. As per the aforesaid eight permits, the accused persons were legally entitled to transport only 2160 litres of toddy and there was an excess of 3386 litres of toddy seized from the scene of occurrence. It was also suspected that the toddy which was seized was adulterated with some other impermissible materials, for which samples were taken and sent for chemical analysis. Therefore the accused who were found there, were all arrested. They include three workers, two drivers and four ladies who were engaged in cleaning the bottles and bottling of toddy. They are the applicants. A total of 11 accused are implicated 5 Bail Appl..No.2159 OF 2021 in the crime, out of which A1 and A11 are not yet arrested. A1 is alleged to be the licensee. 3. The applicants state that the allegations are not true. Even if the allegations are true, there is no material to indicate that the toddy is adulterated with anything else. It is also stated that as per the eight permits, they are legally entitled to transport 3114 litres of toddy. The toddy so brought from different places is intended to be distributed among five groups containing 35 shops and therefore it was brought to the shop No.6 for the purpose of bottling and distributing among the other shops in the five groups. The applicants state that there was nothing illegal about it, even if there was anything illegal, it was only an excess of toddy. The excess was not as stated by the prosecution, but only very little in quantity, and even if that is true, it would only attract an offence under section 56(b) of the Bail Appl..No.2159 OF 2021 6 Abkari Act, which is a bailable and compoundable offence. The learned counsel has relied upon two decision of this Court in **Jith & others v. State of Kerala [2013(3)KHC 138]** to indicate that except for an offence under Section 56(b) of the Abkari Act, the remaining offences will not be attracted, because there is no chemical report which would indicate that there is any other offence other than being in possession of excess quantity committed. Moreover, the learned counsel also relies on the decision **Sobhanan & Others v. State of Kerala [2011(2) KHC 962]** to indicate that until there is a chemical examination report indicating adulteration, the offence to adulteration would not lie. It is admitted that there is no chemical examination report obtained as of now. 4. Heard the learned counsel for the applicants and the learned Public Prosecutor. 5. The learned counsel appearing for the Bail Appl..No.2159 OF 2021 7 applicants submits that all those who were arrested are very poor workers employed in the toddy shop as manual workers, driver and applicant Nos.6 to 9 are ladies engaged in cleaning the bottles for the purpose of bottling of toddy. They all have been arrested and incarcerated for no reason at all. The learned counsel therefore insists on bail be granted to them. A1, the licensee, is not yet apprehended and if at all there is a violation of license conditions, only the licensee would be responsible. 6. Per contra, the learned Public Prosecutor submits that a very serious crime has been committed by the applicants. They were involved in bottling of illicit toddy and there is a huge excess of 3386 litres found from the place of occurrence. Therefore the magnitude of the offence cannot be belittled by stating that they are all poor ladies and workers engaged in toddy shops. Bail Appl..No.2159 OF 2021 8 However, it is admitted that none of the applicants have any criminal antecedents. It is also submitted by the learned Prosecutor that neither of the decisions cited by the learned counsel for the applicants is applicable to the instant case, there is a huge quantity of adulterated toddy which has been seized and the chemical examination report is still awaiting. 7. After having considered anxiously the submissions made on both sides, I find that the chemical examination report is still not before this Court to come to the conclusion that the toddy which was seized is adulterated with any other material. Hence, we cannot jump into the conclusion regarding the applicability of the offences alleged against the applicants. But one thing is sure, none of these applicants are the license holders and conductors of the toddy shop in question. They are workers, drivers and ladies 9 Bail Appl..No.2159 OF 2021 engaged in cleaning bottles. They cannot be held responsible because they do not have any mechanism to find out whether the toddy is in excess or whether the toddy is adulterated. They were employed for wages in the shop and therefore further incarceration of these applicants are without any purpose and I find no reason to incarcerate these applicants. 8. In the result, the bail application is allowed and the applicants are directed to be released on bail on execution of bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties for the like amount each to the satisfaction of the jurisdictional court and on the following conditions; (1) They shall appear before the investigating officer as and when called for. (2) They shall not attempt to influence or intimidate the witnesses. Bail Appl..No.2159 OF 2021 **==> picture [16 x 9] intentionally omitted <==** (3) They shall not get involved in similar offences during the currency of the bail. In the event of violating the bail conditions, the prosecution shall be at liberty to apply for cancellation of bail before the jurisdictional court. ## **Sd/-** ## **ASHOK MENON** **JUDGE** SPK