SUNNY Vs. STATE OF KERALA

JUDGEMENT

(1.) APPREHENDING arrest by the Excise Officials in a non-bailable offence, the petitioner filed an application under S. 438 Cr1. P. C. before the Court of Session, Ernakulam for a direction that he may be ordered to be released on bail in the event of his arrest. He is the accused in a crime registered by the Excise Inspector, Tripunithura alleging offence punishable under S. 55 (a) and (i) of the Abkari Act. The Court of Session dismissed the application holding that the provisions contained in S. 438 Cr P. C. are not applicable in case of arrest by Excise Officials and that the same are applicable only to cases where arrest is to be effected by the police. Reliance was placed in the provision contained in S. 438 (3) Crl. P. C. to come to such conclusion. The Court of Session concluded that a direction can be given to release a person who is arrested by the police only and the provisions contained in S. 438 Cr. P. C. do not apply to arrest by any official other than the police. The petitioner challenges the order of the Court of Session and seeks his release in the event of arrest.

(2.) IT is the prosecution case that the petitioner was found carrying two bags containing contrabands and that when he saw the excise officers, fled from the place abandoning the bags on the road side. Search of the bags revealed concealment of 6. 030 litres of Indian made foreign liquor. Hence, it is the prosecution allegation that the accused is liable to be punished under S. 55 (a) and (i) of the Abkari Act.

(3.) IN view of what is stated above, it is clear that the court of Session was not justified in rejecting the application for anticipatory bail on the sole ground that S. 438 Cr. P. C. is not applicable in a case of threatened arrest by an Abkari Officer.