Thomas Kurian @ Appachan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 28TH DAY OF MAY 2018 / 7TH JYAISHTA, 1940** **Bail Appl..No. 1228 of 2018** **------------------------CRIME NO. 6/2018 OF KANJIRAPPALLY EXCISE RANGE OFFICE, KOTTAYAM DISTRICT** **-----------------** **PETITIONER/ACCUSED : ------------------** **THOMAS KURIAN @ APPACHAN, S/O. OUSEPH KURIAN, AGED 61 YEARS, MARAMKUZHIYIL HOUSE, YENDHEYAR P.O., MUNDAPALLY, KOTTAYAM DISTRICT-686514.** **BY ADVS.SRI.J.ABHILASH SRI.LIJO KURIAN JOSE** **RESPONDENT/COMPLAINANT :** **----------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SENIOR PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.5.2018, THE COURT ON 28-05-2018 PASSED THE FOLLOWING:** **bp 29/5/2018** ## **R.NARAYANA PISHARADI, J** ************************* B.A.No.1228 of 2018 -----------------------------------------Dated this the 28[th] day of May, 2018 ## **O R D E R** This is an application for anticipatory bail filed under Section 438 Cr.P.C. 2. The petitioner is the accused in the case registered as Crime No.6/2018 of Kanjirapally Excise Range under Sections 8(1) read with 8(2) and 55(g) of the Abkari Act, 1077 (hereinafter referred to as 'the Act'). 3. On 24.01.2018, at about 17.30 hours, the excise party led by the Circle Inspector of the Excise Enforcement and AntiNarcotic Special Squad, Kottayam conducted a search of House No.4/214 of Koottickal Panchayat. In a room in the aforesaid house, the excise party found 110 litres of wash in four cans and also a bottle containing 100 ml of arrack. The excise party seized the aforesaid materials as per a mahazar in the presence of witnesses. On the information obtained from the witnesses that B.A.No.1228/2018 2 the aforesaid house was in the possession of the petitioner, a case was registered against him for the offences mentioned above. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent and that he has no connection whatsoever with the house from which the contraband materials were seized by the excise party. On the other hand, the learned Public Prosecutor has opposed the application for bail. 6. Section 41A(1) of the Act states 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 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 B.A.No.1228/2018 3 offences and that he is not likely to commit any offence while on bail. 7. Section 41A (1) of the Act limits the scope of applicability of the provisions of Code of Criminal Procedure regarding grant of bail. The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 41A of the Act. No accused can be released on bail when the application is opposed by the Public Prosecutor unless 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. 8. In the present case, the offences alleged against the petitioner are punishable with imprisonment for more than three years. The learned Public Prosecutor has opposed the application for bail. Therefore, in order to grant bail to the petitioner, in the light of the provisions contained in Section 41A(1) of the Act, the Court has to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offences alleged against him and that he is not likely to commit any such offence B.A.No.1228/2018 4 while on bail. 9. Admittedly, the petitioner was not present in the house concerned when the excise party searched it and seized the contraband materials from there. The excise party also did not see the petitioner dealing with or handling the contraband articles. The mahazar prepared by the detecting officer shows that the witnesses gave him information that the petitioner was in the house concerned and that they saw the petitioner leaving the house in an autorickshaw just before the excise party arrived there. The case diary contains the statement of one of the witnesses to the effect that he gave such information to the detecting officer. It is only on the basis of this information given by a witness to the detecting officer that the petitioner is implicated in the case. 10. The oral information given by the independent witnesses to the detecting officer regarding the ownership and possession of the house concerned cannot be given preference to documentary evidence. The material documents collected by the Investigating Officer show that the owner of the house concerned B.A.No.1228/2018 5 is not the petitioner. There is also absence of documents to show that the house concerned was in the possession of the petitioner at the relevant time. 11. The case diary contains the certificate dated 24.02.2018 issued to the Investigating Officer from Koottickal Panchayat regarding the ownership of the house concerned. It is stated in this certificate that the building bearing No.214 in Ward No.4 (Old No.240/A in Ward No.5) is owned by one C.M.Yohannan. The case diary does not reveal that C.M.Yohannan has been questioned by the Investigating Officer to ascertain how the house under his ownership came to be in the alleged possession of the petitioner. 12. The case diary also contains another certificate dated 28.02.2018 issued from the Koottickal Panchayat. It is stated in this certificate that the building bearing No.234 in Ward No.4 (Old No.214 in Ward No.5) is owned by one Kurian. In this connection, it is to be noted that as per the mahazar prepared by the detecting officer, the number of the house from which the contraband materials were seized is 4/214 and not 5/214. B.A.No.1228/2018 6 13. It is stated in the report dated 08.01.2018 of the Investigating Officer that the place of occurrence of the case is House No.5/214 of Koottickal Panchayat and as per the ownership certificate issued from the Panchayat, the owner of the aforesaid building is Anish Thomas S/o.Thomas Kurian, that is, the son of the petitioner. The case diary does not reveal that any such ownership certificate has been received from the Panchayat concerned. Moreover, as noticed earlier, the number of the house from which the contraband materials were seized is not 5/214 but it is 4/214. 14. In short, at this stage, there is no material to show that on the date and time of the incident, the petitioner was the owner of the building or that he was in possession of the building from which the contraband materials were seized. In such circumstances, prima facie, there are reasonable grounds for believing that the petitioner is not guilty of the offences alleged against him. 15. The prosecution has no case that the petitioner is a person involved in any Abkari case previously. There is no plea B.A.No.1228/2018 7 made by the prosecution that any case under the Abkari Act has been previously registered against the petitioner. There is also no material to find that the petitioner has got any other criminal antecedents. In such circumstances, it can also be found that he is not likely to commit any offence under the Abkari Act while on bail. 16. In a similar situation, in **Poovathal v. State of Kerala : 2008 KHC 6831** , this Court has granted anticipatory bail to the accused, stating as follows: “Learned counsel for the petitioner submitted that petitioner is absolutely innocent of the allegations made. She was not present at the place of occurrence and that the said house does not belong to her. The house from where the article was seized does not belong to petitioner, but under mistaken belief that the house belongs to petitioner, a false case was registered against her, it is submitted, The said house belongs to an other person and not to petitioner. Reference was made in the mahazar etc. to house No. II/165 but the petitioner's house bears No. II/208, as evidenced by Annexure-I certificate issued from Grama B.A.No.1228/2018 8 Panchayat.Learned Public Prosecutor submitted that on investigation, it was found that the house from where the article was seized (House No. II/165) belongs to one Maniyappan, S/o. Kandaswami. .... ... On hearing both sides and particularly in the light of the discrepancy pointed out, I find that anticipatory bail can be granted to petitioner”. 17. Factual situation in the present case is almost similar. In such circumstances, I find that the discretion of the Court can be exercised in favour of the petitioner to grant him the benefit of pre-arrest bail. 18. In the result, this petition is allowed and it is ordered as follows: (1) The petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for the like amount in the event of his arrest by the Investigating Officer in Crime No.6/2018 of the Kanjirapally Excise Range. 2) Before releasing the petitioner on bail, the Investigating Officer is entitled to interrogate the petitioner. The B.A.No.1228/2018 9 petitioner shall co-operate with the investigation of the case. 3) The petitioner shall appear before the Investigating Officer between 9 a.m and 11 a.m on all Mondays and Thursdays for a period of three months from the date of his release on bail and thereafter, on all second Saturdays at the aforesaid time for a further period of six months or till the final report is filed in the case, whichever is earlier. 4) The petitioner shall not, in any manner, intimidate or influence the prosecution witnesses or tamper with the evidence in the case. 5) The petitioner shall surrender his passport in the Magistrate's Court / jurisdictional court concerned within three days of his release on bail. If he does not possess any passport, he shall file an affidavit to that effect in that court within that period. 6) The petitioner shall not commit any offence under the Abkari Act while he is on bail in this case. 7) The petitioner shall appear before the Investigating Officer as and when directed by him in writing to do so. B.A.No.1228/2018 10 8) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned. 9) If the petitioner violates any of the conditions of bail, it is open to the Court having jurisdiction over the case to cancel his bail without any further orders from this Court but in accordance with law. 19. It is made clear that the observations in this order regarding the merits of the prosecution case against the petitioner have been made only for the purpose of deciding the application for bail. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr