Shibin N Jose vs State Of Kerala

K. Haripal, J

This is an application filed under Section 438 of the Criminal Procedure Code by the sole accused in Crime No.60/2021 of Koorachundu Police Station in Kozhikode District.

The allegation is that on 18.03.2021 at 5.30 pm, the Sub Inspector and party found that the petitioner was in possession of 1.5 litres of Indian made foreign liquor, for the purpose of sale, in his bike bearing No.KL-56-B-4732.

According to the prosecution, seeing the police party, the petitioner had run away from the spot abandoning the bike and the contraband. After seizing the contraband and the motor vehicle, the crime was registered under Section 55(i) of the Abkari Act.

The learned counsel for the petitioner submits that the petitioner is a farmer by profession. He had entrusted the bike to his friends for the purpose of procuring food and beverages and some of his friends had purchased Indian made foreign liquor, he had never attempted to sell liquor and that possessing 1.5 litres is not an offence, that he has no criminal antecedent and therefore he has pressed for granting bail in the event of his arrest.

The learned Public Prosecutor has opposed the application. According to the Public Prosecutor, in the light of the embargo under Section 41A of the Abkari Act, an order as sought for cannot be granted.

This Court also takes into consideration the decision of this Court in Muraleedharan vs State of Kerala (2001 KHC 411) where it is held that a pre-arrest bail cannot be granted when such an allegation is made. In other words, the embargo under Section 41A of the Act restraint the court from granting such a relief.

However, taking into account the persuasive arguments raised by the learned counsel for the petitioner, the petitioner is permitted to surrender before the Investigating Officer within ten days from today. If the Investigating Officer deems it necessary to arrest him, the arrest shall be effected on the very same day and he shall be produced before the court and if an application for bail is moved under Section 437 Cr.P.C., the jurisdictional court shall consider and pass orders on the same as expeditiously as possible.

The application is disposed of as above.