SIVAN P K Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an application for anticipatory bail under Section 438 of the code of criminal procedure. The petitioners are accused Nos. 14, 15 and 17 in crime No. 570/2009 of Nedumbassery Police Station.

(2.) THE offence alleged against the petitioners is under Sections 8 (1), (2) and 55 (a) and (i) of the Abkari Act.

(3.) ABOUT 4000 litres of diluted spirit and 6650 litres of toddy mixed spirit were seized by the police on 17/03/2009 from a godown of the toddy shop, of which the first accused is the licensee. Four vehicles were also seized from the premises. No contraband articles were seized from the vehicles. Three of the vehicles belong to three petitioners herein. The petitioners contend that as per the agreements, copies of which are produced along with the Bail application, each one of the petitioners entered into separate agreement with the first accused, by which the vehicle belong to each one of the petitioners was hired for daily rent for a period up to 31/03/2009 to the first accused. It is contended that the 3rd petitioner was employed abroad during the relevant time and now also he is working abroad. Learned counsel for the petitioners pointed out that since there is no allegation that the petitioners committed the offence, there is no justification for including them also in the array of accused. It is also pointed out that simply because the vehicles were seized from the premises, no offence under the Abkari Act can be fastened on the registered owners of the vehicles. The petitioners rely on the decisions in Sooraj Vs. Excise Inspector: [2002 (1) KLJ 739] and Sony C. Mathew Vs. State of Kerala:[2007 (3) KLJ 629]. In support of the contention, the counsel also pointed out that even Section 64a of the Abkari Act would not apply in the case on hand since it was held by this Court in Rajan Vs. Excise inspector: [2004 (2) KLT 430] that vehicle does not come within the purview of section 64 A and only land, building, room, space and enclosure would come within the purview of Section 64 A. There is also no case that the petitioners abetted for the commission of offence.